Exhibit
10.7


 


LANDMARK BANCORP, INC.


 


as Issuer


 


 


INDENTURE


 


Dated as of
December 19, 2003


 


 


WILMINGTON TRUST COMPANY


 


as Trustee


 


 


FLOATING RATE JUNIOR
SUBORDINATED DEBT SECURITIES DUE 2034


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  Section 1.01

  	
  Definitions.

  	
   

  
	
   

  	
   

  
	
  ARTICLE II

  	
  DEBT SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 2.01

  	
  Authentication
  and Dating.

  	
   

  
	
  Section 2.02

  	
  Form of
  Trustee’s Certificate of Authentication.

  	
   

  
	
  Section 2.03

  	
  Form and
  Denomination of Debt Securities.

  	
   

  
	
  Section 2.04

  	
  Execution
  of Debt Securities.

  	
   

  
	
  Section 2.05

  	
  Exchange
  and Registration of Transfer of Debt Securities.

  	
   

  
	
  Section 2.06

  	
  Mutilated,
  Destroyed, Lost or Stolen Debt Securities.

  	
   

  
	
  Section 2.07

  	
  Temporary
  Debt Securities.

  	
   

  
	
  Section 2.08

  	
  Payment of
  Interest.

  	
   

  
	
  Section 2.09

  	
  Cancellation
  of Debt Securities Paid, etc.

  	
   

  
	
  Section 2.10

  	
  Computation
  of Interest.

  	
   

  
	
  Section 2.11

  	
  Extension of
  Interest Payment Period.

  	
   

  
	
  Section 2.12

  	
  CUSIP Numbers.

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  III

  	
  PARTICULAR
  COVENANTS OF THE COMPANY

  	
   

  
	
   

  	
   

  
	
  Section 3.01

  	
  Payment
  of Principal, Premium and Interest; Agreed Treatment of the Debt Securities.

  	
   

  
	
  Section 3.02

  	
  Offices for
  Notices and Payments, etc.

  	
   

  
	
  Section 3.03

  	
  Appointments
  to Fill Vacancies in Trustee’s Office.

  	
   

  
	
  Section 3.04

  	
  Provision
  as to Paying Agent.

  	
   

  
	
  Section 3.05

  	
  Certificate
  to Trustee.

  	
   

  
	
  Section 3.06

  	
  Additional
  Amounts.

  	
   

  
	
  Section 3.07

  	
  Compliance
  with Consolidation Provisions.

  	
   

  
	
  Section 3.08

  	
  Limitation
  on Dividends.

  	
   

  
	
  Section 3.09

  	
  Covenants
  as to the Trust.

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV

  	
  LISTS

  	
   

  
	
   

  	
   

  
	
  Section 4.01

  	
  Securityholders’
  Lists.

  	
   

  
	
  Section 4.02

  	
  Preservation and
  Disclosure of Lists.

  	
   

  
	
  Section 4.03

  	
  Financial
  and Other Information.

  	
   

  
	
   

  	
   

  
	
  ARTICLE V

  	
  REMEDIES OF
  THE TRUSTEE AND SECURITYHOLDERS

  	
   

  
	
   

  	
   

  
	
  Section 5.01

  	
  Events of
  Default.

  	
   

  
	
  Section 5.02

  	
  Payment
  of Debt Securities on Default; Suit Therefor.

  	
   

  
	
  Section 5.03

  	
  Application
  of Moneys Collected by Trustee.

  	
   

  
	
  Section 5.04

  	
  Proceedings
  by Securityholders.

  	
   

  
				



 


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  Section 5.05

  	
  Proceedings
  by Trustee.

  	
   

  
	
  Section 5.06

  	
  Remedies
  Cumulative and Continuing.

  	
   

  
	
  Section 5.07

  	
  Direction
  of Proceedings and Waiver of Defaults by Majority of Securityholders.

  	
   

  
	
  Section 5.08

  	
  Notice of
  Defaults.

  	
   

  
	
  Section 5.09

  	
  Undertaking
  to Pay Costs.

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI

  	
  CONCERNING
  THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 6.01

  	
  Duties and
  Responsibilities of Trustee.

  	
   

  
	
  Section 6.02

  	
  Reliance on
  Documents, Opinions, etc.

  	
   

  
	
  Section 6.03

  	
  No Responsibility
  for Recitals, etc.

  	
   

  
	
  Section 6.04

  	
  Trustee,
  Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
  Debt Securities.

  	
   

  
	
  Section 6.05

  	
  Moneys
  to be Held in Trust.

  	
   

  
	
  Section 6.06

  	
  Compensation and
  Expenses of Trustee.

  	
   

  
	
  Section 6.07

  	
  Officers’
  Certificate as Evidence.

  	
   

  
	
  Section 6.08

  	
  Eligibility
  of Trustee.

  	
   

  
	
  Section 6.09

  	
  Resignation
  or Removal of Trustee.

  	
   

  
	
  Section 6.10

  	
  Acceptance
  by Successor Trustee.

  	
   

  
	
  Section 6.11

  	
  Succession by Merger,
  etc.

  	
   

  
	
  Section 6.12

  	
  Authenticating Agents.

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII

  	
  CONCERNING THE
  SECURITYHOLDERS

  	
   

  
	
   

  	
   

  
	
  Section 7.01

  	
  Action by
  Securityholders.

  	
   

  
	
  Section 7.02

  	
  Proof of Execution by
  Securityholders.

  	
   

  
	
  Section 7.03

  	
  Who Are Deemed
  Absolute Owners.

  	
   

  
	
  Section 7.04

  	
  Debt Securities Owned
  by Company Deemed Not Outstanding.

  	
   

  
	
  Section 7.05

  	
  Revocation of
  Consents; Future Holders Bound.

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  SECURITYHOLDERS’
  MEETINGS

  	
   

  
	
   

  	
   

  
	
  Section 8.01

  	
  Purposes of Meetings.

  	
   

  
	
  Section 8.02

  	
  Call of Meetings by
  Trustee.

  	
   

  
	
  Section 8.03

  	
  Call of Meetings by
  Company or Securityholders.

  	
   

  
	
  Section 8.04

  	
  Qualifications for
  Voting.

  	
   

  
	
  Section 8.05

  	
  Regulations.

  	
   

  
	
  Section 8.06

  	
  Voting.

  	
   

  
	
  Section 8.07

  	
  Quorum; Actions.

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  
	
  Section 9.01

  	
  Supplemental
  Indentures without Consent of Securityholders.

  	
   

  
	
  Section 9.02

  	
  Supplemental
  Indentures with Consent of Securityholders.

  	
   

  
				



 


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  Section 9.03

  	
  Effect of Supplemental
  Indentures.

  	
   

  
	
  Section 9.04

  	
  Notation on Debt
  Securities.

  	
   

  
	
  Section 9.05

  	
  Evidence of Compliance
  of Supplemental Indenture to be Furnished to Trustee.

  	
   

  
	
   

  	
   

  
	
  ARTICLE X

  	
  REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 10.01

  	
  Optional Redemption.

  	
   

  
	
  Section 10.02

  	
  Special Event
  Redemption.

  	
   

  
	
  Section 10.03

  	
  Notice of
  Redemption; Selection of Debt Securities.

  	
   

  
	
  Section 10.04

  	
  Payment of Debt
  Securities Called for Redemption.

  	
   

  
	
   

  	
   

  
	
  ARTICLE XI

  	
  CONSOLIDATION, MERGER,
  SALE, CONVEYANCE AND LEASE

  	
   

  
	
   

  	
   

  
	
  Section 11.01

  	
  Company May
  Consolidate, etc., on Certain Terms.

  	
   

  
	
  Section 11.02

  	
  Successor Entity to
  be Substituted.

  	
   

  
	
  Section 11.03

  	
  Opinion of Counsel
  to be Given to Trustee.

  	
   

  
	
   

  	
   

  
	
  ARTICLE XII

  	
  SATISFACTION AND
  DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  
	
  Section 12.01

  	
  Discharge of
  Indenture.

  	
   

  
	
  Section 12.02

  	
  Deposited Moneys to
  be Held in Trust by Trustee.

  	
   

  
	
  Section 12.03

  	
  Paying Agent to
  Repay Moneys Held.

  	
   

  
	
  Section 12.04

  	
  Return of Unclaimed
  Moneys.

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XIII

  	
  IMMUNITY OF
  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
   

  	
   

  
	
  Section 13.01

  	
  Indenture and Debt
  Securities Solely Corporate Obligations.

  	
   

  
	
   

  	
   

  
	
  ARTICLE XIV

  	
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  
	
  Section 14.01

  	
  Successors.

  	
   

  
	
  Section 14.02

  	
  Official Acts by
  Successor Entity.

  	
   

  
	
  Section 14.03

  	
  Surrender of Company
  Powers.

  	
   

  
	
  Section 14.04

  	
  Addresses for
  Notices, etc.

  	
   

  
	
  Section 14.05

  	
  Governing Law.

  	
   

  
	
  Section 14.06

  	
  Evidence of
  Compliance with Conditions Precedent.

  	
   

  
	
  Section 14.07

  	
  Business Day
  Convention.

  	
   

  
	
  Section 14.08

  	
  Table of Contents,
  Headings, etc.

  	
   

  
	
  Section 14.09

  	
  Execution in
  Counterparts.

  	
   

  
	
  Section 14.10

  	
  Separability.

  	
   

  
	
  Section 14.11

  	
  Assignment.

  	
   

  
	
  Section 14.12

  	
  Acknowledgment of
  Rights.

  	
   

  
	
   

  	
   

  
	
  ARTICLE XV

  	
  SUBORDINATION OF DEBT
  SECURITIES

  	
   

  
				



 


iii

















 


	
  Section 15.01

  	
  Agreement to
  Subordinate.

  	
   

  
	
  Section 15.02

  	
  Default on Senior
  Indebtedness.

  	
   

  
	
  Section 15.03

  	
  Liquidation;
  Dissolution; Bankruptcy.

  	
   

  
	
  Section 15.04

  	
  Subrogation.

  	
   

  
	
  Section 15.05

  	
  Trustee to
  Effectuate Subordination.

  	
   

  
	
  Section 15.06

  	
  Notice by the
  Company.

  	
   

  
	
  Section 15.07

  	
  Rights of the
  Trustee; Holders of Senior Indebtedness.

  	
   

  
	
  Section 15.08

  	
  Subordination May
  Not Be Impaired.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
  EXHIBIT
  A  Form of Debt Security

  	
   

  



 


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THIS INDENTURE, dated as
of December 19, 2003, between Landmark Bancorp, Inc., a bank holding
company incorporated in Delaware (hereinafter sometimes called the “Company”),
and Wilmington Trust Company, a Delaware banking corporation, as trustee
(hereinafter sometimes called the “Trustee”).


 


W I T N E S S E T H :


 


WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the issuance of its
Floating Rate Junior Subordinated Debt Securities due 2034 (the “Debt
Securities”) under this Indenture and to provide, among other things, for the
execution and authentication, delivery and administration thereof, the Company
has duly authorized the execution of this Indenture.


 


NOW, THEREFORE, in
consideration of the premises, and the purchase of the Debt Securities by the
holders thereof, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective holders from time to time of
the Debt Securities as follows:


 


ARTICLE I

DEFINITIONS


 


Section 1.01           Definitions.


 


The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles and the term “generally accepted accounting
principles” means such accounting principles as are generally accepted in the
United States at the time of any computation. 
The words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.


 


“Additional Amounts” has
the meaning set forth in Section 3.06.


 


“Additional Provisions”
has the meaning set forth in Section 15.01.


 


“Administrative Action”
has the meaning specified within the definition of “Tax Event” in this Section
1.01.


 


“Authenticating Agent”
means any agent or agents of the Trustee which at the time shall be appointed
and acting pursuant to Section 6.12.


 


“Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the relief of
debtors.


 


“Board of Directors”
means the board of directors or the executive committee or any other duly
authorized designated officers of the Company.


 

















 


“Board Resolution” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the
Trustee.


 


“Business Day” means any
day other than a Saturday, Sunday or any other day on which banking
institutions in Wilmington, Delaware, The City of New York or Topeka, Kansas
are permitted or required by law or executive order to close.


 


“Calculation Agent” means
the Person identified as “Trustee” in the first paragraph hereof with respect
to the Debt Securities and the Institutional Trustee with respect to the Trust
Securities.


 


“Capital Securities”
means undivided beneficial interests in the assets of the Trust which are
designated as “MMCapSSM” and rank pari passu with Common
Securities issued by the Trust; provided, however, that if an
Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of such Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of such Capital Securities.


 


“Capital Securities
Guarantee” means the guarantee agreement that the Company will enter into with
Wilmington Trust Company or other Persons that operates directly or indirectly
for the benefit of holders of Capital Securities of the Trust.


 


“Capital Treatment Event”
means, if the Company is organized and existing under the laws of the United
States or any state thereof or the District of Columbia, the receipt by the
Company and the Trust of an Opinion of Counsel experienced in such matters to
the effect that, as a result of any amendment to, or change in, the laws, rules
or regulations of the United States or any political subdivision thereof or
therein, or as the result of any official or administrative pronouncement or
action or decision interpreting or applying such laws, rules or regulations,
which amendment or change is effective or which pronouncement, action or
decision is announced on or after the date of original issuance of the Debt
Securities, there is more than an insubstantial risk that the Company will not,
within 90 days of the date of such opinion, be entitled to treat an amount
equal to the aggregate Liquidation Amount of the Capital Securities as “Tier 1
Capital” (or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies), as then in effect and applicable to
the Company; provided, however, that the distribution of the Debt
Securities in connection with the liquidation of the Trust by the Company shall
not in and of itself constitute a Capital Treatment Event unless such
liquidation shall have occurred in connection with a Tax Event or an Investment
Company Event.


 


“Certificate” means a
certificate signed by any one of the principal executive officer, the principal
financial officer or the principal accounting officer of the Company.


 


“Code” means the Internal
Revenue Code of 1986, as amended.


 


“Common Securities” means
undivided beneficial interests in the assets of the Trust which are designated
as “Common Securities” and rank pari passu with Capital Securities


 


2

















 


issued by the Trust; provided, however,
that if an Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of such Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of such Capital Securities.


 


“Company” means Landmark
Bancorp, Inc., a bank holding company incorporated in Delaware, and, subject to
the provisions of Article XI, shall include its successors and assigns.


 


“Debt Security” or “Debt
Securities” has the meaning stated in the first recital of this Indenture.


 


“Debt Security Register”
has the meaning specified in Section 2.05.


 


“Declaration” means the
Amended and Restated Declaration of Trust of the Trust, dated as of
December 19, 2003, as amended or supplemented from time to time.


 


“Default” means any
event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.


 


“Defaulted Interest” has
the meaning set forth in Section 2.08.


 


“Deferred Interest” has
the meaning set forth in Section 2.11.


 


“Event of Default” means
any event specified in Section 5.01, which has continued for the period of
time, if any, and after the giving of the notice, if any, therein designated.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


“Extension Period” has
the meaning set forth in Section 2.11.


 


“Federal Reserve” means
the Board of Governors of the Federal Reserve System.


 


“Indenture” means this
Indenture as originally executed or, if amended or supplemented as herein
provided, as so amended or supplemented, or both.


 


“Institutional Trustee”
has the meaning set forth in the Declaration.


 


“Interest Payment Date”
means January 23, April 23, July 23 and October 23 of each
year, commencing on April 23, 2004, subject to Section 14.07.


 


“Interest Period” has the
meaning set forth in Section 2.08.


 


“Interest Rate” means,
with respect to any Interest Period, a per annum rate of interest equal to
LIBOR, as determined on the LIBOR Determination Date for such Interest Period,
plus, from, and including, March 18, 2004, 2.85%; provided, however, that the
Interest


 


3

















 


Rate for any Interest Period may not exceed the
highest rate permitted by New York law, as the same may be modified by United
States law of general application.


 


“Investment Company
Event” means the receipt by the Company and the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of a change in law
or regulation or written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or,
within 90 days of the date of such opinion will be, considered an “investment
company” that is required to be registered under the Investment Company Act of
1940, as amended, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the original
issuance of the Debt Securities.


 


“LIBOR” means the London
Interbank Offered Rate for three-month U.S. Dollar deposits in Europe as
determined by the Calculation Agent according to Section 2.10(b).


 


“LIBOR Banking Day” has
the meaning set forth in Section 2.10(b)(i).


 


“LIBOR Business Day” has
the meaning set forth in Section 2.10(b)(i).


 


“LIBOR Determination
Date” has the meaning set forth in Section 2.10(b)(i).


 


“Liquidation Amount”
means the liquidation amount of $1,000 per Trust Security.


 


“Maturity Date” means
January 23, 2034, subject to Section 14.07.


 


“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, the Vice Chairman, the
President or any Vice President, and by the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.  Each such certificate shall
include the statements provided for in Section 14.06 if and to the extent
required by the provisions of such Section.


 


“Opinion of Counsel”
means an opinion in writing signed by legal counsel, who may be an employee of
or counsel to the Company or may be other counsel reasonably satisfactory to
the Trustee.  Each such opinion shall
include the statements provided for in Section 14.06 if and to the extent
required by the provisions of such Section.


 


The term “outstanding,”
when used with reference to Debt Securities, subject to the provisions of
Section 7.04, means, as of any particular time, all Debt Securities
authenticated and delivered by the Trustee or the Authenticating Agent under
this Indenture, except


 


(a)           Debt Securities theretofore canceled
by the Trustee or the Authenticating Agent or delivered to the Trustee for
cancellation;


 


(b)           Debt Securities, or portions thereof,
for the payment or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or


 


4

















 


with any Paying Agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent); provided, that, if such Debt
Securities, or portions thereof, are to be redeemed prior to maturity thereof,
notice of such redemption shall have been given as provided in Articles X and
XIV or provision satisfactory to the Trustee shall have been made for giving
such notice; and


 


(c)           Debt Securities paid pursuant to
Section 2.06 or in lieu of or in substitution for which other Debt Securities
shall have been authenticated and delivered pursuant to the terms of Section
2.06 unless proof satisfactory to the Company and the Trustee is presented that
any such Debt Securities are held by bona fide holders in due course.


 


“Optional Redemption
Date” has the meaning set forth in Section 10.01.


 


“Optional Redemption
Price” means an amount in cash equal to 100% of the principal amount of the
Debt Securities being redeemed plus unpaid interest accrued on such Debt
Securities to the related Optional Redemption Date.


 


“Paying Agent” has the
meaning set forth in Section 3.04(e).


 


“Person” means a legal
person, including any individual, corporation, estate, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated association, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.


 


“Predecessor Security” of
any particular Debt Security means every previous Debt Security evidencing all
or a portion of the same debt as that evidenced by such particular Debt
Security; and, for the purposes of this definition, any Debt Security
authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Debt Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debt Security.


 


“Principal Office of the
Trustee” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which at all times
shall be located within the United States and at the time of the execution of
this Indenture shall be Rodney Square North, 1100 North Market Street,
Wilmington, DE 19890-0001.


 


“Reference Banks” has the
meaning set forth in Section 2.10(b)(ii).


 


“Resale Restriction
Termination Date” means, with respect to any Debt Security, the date which is
the later of (i) two years (or such shorter period of time as permitted by Rule
144(k) under the Securities Act) after the later of (y) the date of original
issuance of such Debt Security and (z) the last date on which the Company or
any Affiliate (as defined in Rule 405 under the Securities Act) of the Company
was the holder of such Debt Security (or any predecessor thereto) and (ii) such
later date, if any, as may be required by any subsequent change in applicable
law.


 


“Responsible Officer”
means, with respect to the Trustee, any officer within the Principal Office of
the Trustee with direct responsibility for the administration of the Indenture,


 


5

















 


including any vice-president, any assistant
vice-president, any secretary, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer or other officer of the Principal Office
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer’s knowledge of and familiarity with the
particular subject.


 


“Securities Act” means
the Securities Act of 1933, as amended.


 


“Securityholder,” “holder
of Debt Securities” or other similar terms, means any Person in whose name at
the time a particular Debt Security is registered on the Debt Security
Register.


 


“Senior Indebtedness”
means, with respect to the Company, (i) the principal, premium, if any, and
interest in respect of (A) indebtedness of the Company for money borrowed and
(B) indebtedness evidenced by securities, debentures, notes, bonds or other
similar instruments issued by the Company, (ii) all capital lease obligations
of the Company, (iii) all obligations of the Company issued or assumed as the
deferred purchase price of property, all conditional sale obligations of the
Company and all obligations of the Company under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business), (iv) all obligations of the Company for the reimbursement of any
letter of credit, any banker’s acceptance, any security purchase facility, any
repurchase agreement or similar arrangement, any interest rate swap, any other
hedging arrangement, any obligation under options or any similar credit or
other transaction, (v) all obligations of the type referred to in clauses (i)
through (iv) above of other Persons for the payment of which the Company is
responsible or liable as obligor, guarantor or otherwise and (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
Persons secured by any lien on any property or asset of the Company (whether or
not such obligation is assumed by the Company), whether incurred on or prior to
the date of this Indenture or thereafter incurred, unless, with the prior
approval of the Federal Reserve if not otherwise generally approved, it is provided
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding that such obligations are not superior or are pari passu
in right of payment to the Debt Securities; provided, however,
that Senior Indebtedness shall not include (A) any debt securities issued to
any trust other than the Trust (or a trustee of such trust) that is a financing
vehicle of the Company (a “financing entity”), in connection with the issuance
by such financing entity of equity or other securities in transactions
substantially similar in structure to the transactions contemplated hereunder
and in the Declaration or (B) any guarantees of the Company in respect of the
equity or other securities of any financing entity referred to in clause (A) above.


 


“Special Event” means any
of a Tax Event, an Investment Company Event or a Capital Treatment Event.


 


“Special Redemption Date”
has the meaning set forth in Section 10.02.


 


“Special Redemption
Price” means, with respect to the redemption of any Debt Security following a
Special Event, an amount in cash equal to 104.125% of the principal


 


6

















 


amount of Debt Securities to be redeemed prior to
January 23, 2005 and thereafter equal to the percentage of the principal amount
of the Debt Securities that is specified below for the Special Redemption Date
plus, in each case, unpaid interest accrued thereon to the Special Redemption
Date:


 


	
  Special Redemption During the
  12-Month

  Period Beginning January 23,

  	
   

  	
  Percentage
  of Principal Amount

  	
   

  
	
  2005

  	
   

  	
  103.300

  	
  %

  
	
  2006

  	
   

  	
  102.415

  	
  %

  
	
  2007

  	
   

  	
  101.650

  	
  %

  
	
  2008

  	
   

  	
  100.825

  	
  %

  
	
  2009 and
  thereafter

  	
   

  	
  100.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  



 


“Subsidiary” means, with
respect to any Person, (i) any corporation, at least a majority of the
outstanding voting stock of which is owned, directly or indirectly, by such
Person or one or more of its Subsidiaries or by such Person and one or more of
its Subsidiaries, (ii) any general partnership, joint venture or similar
entity, at least a majority of the outstanding partnership or similar interests
of which shall at the time be owned by such Person or one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, and (iii)
any limited partnership of which such Person or any of its Subsidiaries is a
general partner.  For the purposes of
this definition, “voting stock” means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.


 


“Tax Event” means the
receipt by the Company and the Trust of an Opinion of Counsel experienced in
such matters to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any regulations
thereunder of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement (including any private letter ruling, technical advice
memorandum, regulatory procedure, notice or announcement (an “Administrative
Action”)) or judicial decision interpreting or applying such laws or
regulations, regardless of whether such Administrative Action or judicial
decision is issued to or in connection with a proceeding involving the Company
or the Trust and whether or not subject to review or appeal, which amendment,
clarification, change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of original
issuance of the Debt Securities, there is more than an insubstantial risk that:
(i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received or
accrued on the Debt Securities; (ii) if the Company is organized and existing
under the laws of the United States or any state thereof or the District of
Columbia, interest payable by the Company on the Debt Securities is not, or
within 90 days of the date of such opinion, will not be, deductible by


 


7

















 


the Company, in whole or in part, for United States
federal income tax purposes; or (iii) the Trust is, or will be within 90 days
of the date of such opinion, subject to or otherwise required to pay, or
required to withhold from distributions to holders of Trust Securities, more
than a de minimis amount of other taxes (including withholding taxes), duties,
assessments or other governmental charges.


 


“Trust” means Landmark
Capital Trust I, the Delaware statutory trust, or any other similar trust
created for the purpose of issuing Capital Securities in connection with the
issuance of Debt Securities under this Indenture, of which the Company is the
sponsor.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended from time to time, or any
successor legislation.


 


“Trust Securities” means
Common Securities and Capital Securities of the Trust.


 


“Trustee” means the
Person identified as “Trustee” in the first paragraph hereof, and, subject to
the provisions of Article VI hereof, shall also include its successors and
assigns as Trustee hereunder.


 


“United States” means the
United States of America and the District of Columbia.


 


“U.S. Person” has the
meaning given to United States Person as set forth in Section 7701(a)(30) of
the Code.


 


ARTICLE II

DEBT SECURITIES


 


Section 2.01           Authentication and Dating.


 


Upon the execution and
delivery of this Indenture, or from time to time thereafter, Debt Securities in
an aggregate principal amount not in excess of $8,248,000 may be executed and
delivered by the Company to the Trustee for authentication, and the Trustee
shall thereupon authenticate and make available for delivery said Debt
Securities to or upon the written order of the Company, signed by its Chairman
of the Board of Directors, Vice Chairman, President or Chief Financial Officer
or one of its Vice Presidents, without any further action by the Company
hereunder.  In authenticating such Debt
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Debt Securities, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon a copy
of any Board Resolution or Board Resolutions relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary
or other officers with appropriate delegated authority of the Company as the
case may be.


 


The Trustee shall have
the right to decline to authenticate and deliver any Debt Securities under this
Section if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken or if a Responsible Officer of the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Securityholders.


 


8

















 


The definitive Debt
Securities shall be typed, printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Debt Securities, as evidenced by their execution of
such Debt Securities.


 


Section 2.02           Form of Trustee’s Certificate of
Authentication.


 


The Trustee’s certificate
of authentication on all Debt Securities shall be in substantially the
following form:


 


This is one of the Debt
Securities referred to in the within-mentioned Indenture.


 


	
   

  	
  Wilmington Trust Company,

  
	
   

  	
  not in its
  individual capacity

  
	
   

  	
  but solely as
  trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  



 


Section 2.03           Form and Denomination of Debt
Securities.


 


The Debt Securities shall
be substantially in the form of Exhibit A hereto.  The Debt Securities shall be in registered, certificated form
without coupons and in minimum denominations of $100,000 and any multiple of
$1,000 in excess thereof.  The Debt
Securities shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.


 


Section 2.04           Execution of Debt Securities.


 


The Debt Securities shall
be signed in the name and on behalf of the Company by the manual or facsimile
signature of its Chairman of the Board of Directors, Vice Chairman, President
or Chief Financial Officer or one of its Executive Vice Presidents, Senior Vice
Presidents or Vice Presidents, under its corporate seal (if legally required)
which may be affixed thereto or printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise, and which need not be attested.  Only such Debt Securities as shall bear
thereon a certificate of authentication substantially in the form herein before
recited, executed by the Trustee or the Authenticating Agent by the manual
signature of an authorized officer, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee or the Authenticating Agent upon
any Debt Security executed by the Company shall be conclusive evidence that the
Debt Security so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this Indenture.


 


In case any officer of
the Company who shall have signed any of the Debt Securities shall cease to be
such officer before the Debt Securities so signed shall have been authenticated
and delivered by the Trustee or the Authenticating Agent, or disposed of by the
Company, such Debt Securities nevertheless may be authenticated and delivered
or disposed of


 


9

















 


as though the Person who signed such Debt Securities
had not ceased to be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such Persons as, at the actual date of the
execution of such Debt Security, shall be the proper officers of the Company,
although at the date of the execution of this Indenture any such person was not
such an officer.


 


Every Debt Security shall
be dated the date of its authentication.


 


Section 2.05           Exchange and Registration of
Transfer of Debt Securities.


 


The Company shall cause
to be kept, at the office or agency maintained for the purpose of registration
of transfer and for exchange as provided in Section 3.02, a register (the “Debt
Security Register”) for the Debt Securities issued hereunder in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration and transfer of all Debt Securities as provided in this
Article II.  Such register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time.


 


Debt Securities to be
exchanged may be surrendered at the Principal Office of the Trustee or at any
office or agency to be maintained by the Company for such purpose as provided
in Section 3.02, and the Company shall execute, the Company or the Trustee
shall register and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery in exchange therefor, the Debt Security or Debt
Securities which the Securityholder making the exchange shall be entitled to
receive.  Upon due presentment for
registration of transfer of any Debt Security at the Principal Office of the
Trustee or at any office or agency of the Company maintained for such purpose
as provided in Section 3.02, the Company shall execute, the Company or the
Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in the name of the transferee or
transferees, a new Debt Security for a like aggregate principal amount.
Registration or registration of transfer of any Debt Security by the Trustee or
by any agent of the Company appointed pursuant to Section 3.02, and delivery of
such Debt Security, shall be deemed to complete the registration or
registration of transfer of such Debt Security.


 


All Debt Securities
presented for registration of transfer or for exchange or payment shall (if so
required by the Company or the Trustee or the Authenticating Agent) be duly
endorsed by, or be accompanied by, a written instrument or instruments of
transfer in form satisfactory to the Company and either the Trustee or the
Authenticating Agent duly executed by, the holder or such holder’s attorney
duly authorized in writing.


 


No service charge shall
be made for any exchange or registration of transfer of Debt Securities, but
the Company or the Trustee may require payment of a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in connection
therewith other than exchanges pursuant to Section 2.07, Section 9.04 or
Section 10.04 not involving any transfer.


 


The Company or the
Trustee shall not be required to exchange or register a transfer of any Debt
Security for a period of 15 days immediately preceding the date of selection of
Debt Securities for redemption.


 


10

















 


Notwithstanding the
foregoing, Debt Securities may not be transferred prior to the Resale
Restriction Termination Date except in compliance with the legend set forth
below, unless otherwise determined by the Company in accordance with applicable
law, which legend shall be placed on each Debt Security:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR
ANY OTHER APPLICABLE SECURITIES LAWS. 
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.  THE HOLDER OF THIS SECURITY OR ANY
INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE
CASE MAY BE, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANY
INTEREST OR PARTICIPATION HEREIN PRIOR TO THE DATE WHICH IS THE LATER OF (i)
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT) AFTER THE LATER OF (Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND
(Z) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE (AS DEFINED IN RULE 405
UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE HOLDER OF THIS SECURITY OR
SUCH INTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW,
ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
(“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER”, AS DEFINED IN RULE 144A, THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)
OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY OR
SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT
OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) ABOVE TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
IT IN ACCORDANCE WITH THE


 


11

















 


INDENTURE,
A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.  THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS.


 


THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES,
REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
(EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY
REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS”
OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS
PURCHASE AND HOLDING OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING.  ANY PURCHASER
OR HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR THEREOF, AS
THE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE
IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY
EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE
AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.


 


IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY
WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
MINIMUM DENOMINATIONS OF $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF.  ANY ATTEMPTED TRANSFER OF THIS
SECURITY IN DENOMINATIONS OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND


 


12

















 


OF
NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT
TO BE THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR
ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST
OR PARTICIPATION HEREIN.


 


THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE
UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL
DEPOSIT INSURANCE CORPORATION (THE “FDIC”). THIS OBLIGATION IS SUBORDINATED TO
THE CLAIMS OF THE DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF
THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF
ITS SUBSIDIARIES AND IS NOT SECURED.


 


Section 2.06           Mutilated, Destroyed, Lost or
Stolen Debt Securities.


 


In case any Debt Security
shall become mutilated or be destroyed, lost or stolen, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, a new Debt Security bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Debt Security, or
in lieu of and in substitution for the Debt Security so destroyed, lost or
stolen.  In every case the applicant for
a substituted Debt Security shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Debt Security and of the ownership thereof.


 


The Trustee may
authenticate any such substituted Debt Security and deliver the same upon the
written request or authorization of any officer of the Company.  Upon the issuance of any substituted Debt
Security, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses connected therewith. 
In case any Debt Security which has matured or is about to mature or has
been called for redemption in full shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Debt Security, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debt Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction,
loss or theft, evidence satisfactory to the Company and to the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.


 


Every substituted Debt
Security issued pursuant to the provisions of this Section 2.06 by virtue of
the fact that any such Debt Security is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Debt Security shall be found at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities duly issued
hereunder.  All


 


13

















 


Debt Securities shall be held and owned upon the
express condition that, to the extent permitted by applicable law, the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.


 


Section 2.07           Temporary Debt Securities.


 


Pending the preparation
of definitive Debt Securities, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Debt Securities that are
typed, printed or lithographed. Temporary Debt Securities shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Debt Securities but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the
Company.  Every such temporary Debt
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the
same effect, as the definitive Debt Securities.  Without unreasonable delay, the Company will execute and deliver
to the Trustee or the Authenticating Agent definitive Debt Securities and
thereupon any or all temporary Debt Securities may be surrendered in exchange
therefor, at the Principal Office of the Trustee or at any office or agency
maintained by the Company for such purpose as provided in Section 3.02, and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in exchange for such temporary Debt Securities a like aggregate
principal amount of such definitive Debt Securities.  Such exchange shall be made by the Company at its own expense and
without any charge therefor except that in case of any such exchange involving
a registration of transfer the Company may require payment of a sum sufficient
to cover any tax, fee or other governmental charge that may be imposed in
relation thereto.  Until so exchanged,
the temporary Debt Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities authenticated and
delivered hereunder.


 


Section 2.08           Payment of Interest.


 


Each Debt Security will
bear interest at the then applicable Interest Rate (i) in the case of the
initial Interest Period, for the period from, and including, the date of
original issuance of such Debt Security to, but excluding, the initial Interest
Payment Date and (ii) thereafter, for the period from, and including, the first
day following the end of the preceding Interest Period to, but excluding, the
applicable Interest Payment Date or, in the case of the last Interest Period,
the related Optional Redemption Date, Special Redemption Date or Maturity Date,
as applicable (each such period, an “Interest Period”), on the principal
thereof, on any overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) on Deferred Interest and on any
overdue installment of interest (including Defaulted Interest), payable
(subject to the provisions of Article XII) on each Interest Payment Date.  Interest and any Deferred Interest on any
Debt Security that is payable, and is punctually paid or duly provided for by
the Company, on any Interest Payment Date shall be paid to the Person in whose
name such Debt Security (or one or more Predecessor Securities) is registered
at the close of business on the regular record date for such interest
installment, except that interest and any Deferred


 


14

















 


Interest payable on the Maturity Date, any Optional
Redemption Date or the Special Redemption Date, as the case may be, shall be
paid to the Person to whom principal is paid. 
In case (i) the Maturity Date of any Debt Security or (ii) any
Debt Security or portion thereof is called for redemption and the related
Optional Redemption Date or the Special Redemption Date, as the case may be, is
subsequent to the regular record date with respect to any Interest Payment Date
and either on or prior to such Interest Payment Date, interest on such Debt
Security will be paid upon presentation and surrender of such Debt Security.


 


Any interest on any Debt
Security, other than Deferred Interest, that is payable, but is not punctually
paid or duly provided for by the Company, on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the holder
on the relevant regular record date by virtue of having been such holder, and
such Defaulted Interest shall be paid by the Company to the Persons in whose
names such Debt Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner:  the Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each such
Debt Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
provided in this paragraph.  Thereupon
the Trustee shall fix a special record date for the payment of such Defaulted
Interest, which shall not be more than fifteen nor less than ten days prior to
the date of the proposed payment and not less than ten days after the receipt
by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Debt Security
Register, not less than ten days prior to such special record date.  Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Debt Securities (or their respective Predecessor Securities) are
registered on  such special record date
and thereafter the Company shall have no further payment obligation in respect
of the Defaulted Interest.


 


Any interest scheduled to
become payable on an Interest Payment Date occurring during an Extension Period
shall not be Defaulted Interest and shall be payable on such other date as may
be specified in the terms of such Debt Securities.


 


The term “regular record
date”, as used in this Section, shall mean the fifteenth day prior to the
applicable Interest Payment Date, whether or not such day is a Business Day.


 


Subject to the foregoing
provisions of this Section, each Debt Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other
Debt Security shall carry the rights to interest accrued and unpaid, and to
accrue, that were carried by such other Debt Security.


 


15

















 


Section 2.09           Cancellation of Debt Securities
Paid, etc.


 


All Debt Securities
surrendered for the purpose of payment, redemption, exchange or registration of
transfer, shall, if surrendered to the Company or any Paying Agent, be
surrendered to the Trustee and promptly canceled by it, or, if surrendered to
the Trustee or any Authenticating Agent, shall be promptly canceled by it, and
no Debt Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture.  All Debt Securities canceled by any Authenticating Agent shall be
delivered to the Trustee.  The Trustee
shall destroy all canceled Debt Securities unless the Company otherwise directs
the Trustee in writing, in which case the Trustee shall dispose of such Debt
Securities as directed by the Company. 
If the Company shall acquire any of the Debt Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debt Securities unless and until the same are
surrendered to the Trustee for cancellation.


 


Section 2.10           Computation of Interest.


 


(a)           The amount of interest payable for
any Interest Period will be computed on the basis of a 360-day year and the
actual number of days elapsed in such Interest Period.


 


(b)           LIBOR shall be determined by the
Calculation Agent for each Interest Period in accordance with the following
provisions:


 


(i)            On the second LIBOR Business Day
(provided, that on such day commercial banks are open for business (including
dealings in foreign currency deposits) in London (a “LIBOR Banking Day”), and
otherwise the next preceding LIBOR Business Day that is also a LIBOR Banking
Day) prior to the January 30, April 30, July 30 or
October 30, as the case may be, immediately succeeding the commencement of
such Interest Period (or, in the case of the first Interest Period, prior to
December 19, 2003) (each such day, a “LIBOR Determination Date”), LIBOR
shall equal the rate, as obtained by the Calculation Agent, for three-month
U.S. Dollar deposits in Europe, which appears on Telerate (as defined in the
International Swaps and Derivatives Association, Inc. 2000 Interest Rate and
Currency Exchange Definitions) page 3750 or such other page as may replace such
page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date, as
reported by Bloomberg Financial Markets Commodities News or any successor
service (“Telerate Page 3750”).  “LIBOR
Business Day” means any day that is not a Saturday, Sunday or other day on
which commercial banking institutions in The City of New York or Wilmington,
Delaware are authorized or obligated by law or executive order to be
closed.  If such rate is superseded on
Telerate Page 3750 by a corrected rate before 12:00 noon (London time) on such
LIBOR Determination Date, the corrected rate as so substituted will be LIBOR
for such LIBOR Determination Date.


 


(ii)           If, on such LIBOR Determination Date,
such rate does not appear on Telerate Page 3750, the Calculation Agent shall
determine the arithmetic mean of the offered quotations of the Reference Banks
to leading banks in the London interbank market for three-month U.S. Dollar
deposits in Europe (in an amount determined by the Calculation Agent) by
reference to requests for quotations as of approximately 11:00 a.m.


 


16

















 


(London time) on
such LIBOR Determination Date made by the Calculation Agent to the Reference
Banks.  If, on such LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal the arithmetic mean of such quotations. 
If, on such LIBOR Determination Date, only one or none of the Reference
Banks provide such a quotation, LIBOR shall be deemed to be the arithmetic mean
of the offered quotations that at least two leading banks in The City of New
York (as selected by the Calculation Agent) are quoting on such LIBOR
Determination Date for three-month U.S. Dollar deposits in Europe at
approximately 11:00 a.m. (London time) (in an amount determined by the
Calculation Agent). As used herein, “Reference Banks” means four major banks in
the London interbank market selected by the Calculation Agent.


 


(iii)          If the Calculation Agent is required
but is unable to determine a rate in accordance with at least one of the
procedures provided above, LIBOR for such Interest Period shall be LIBOR in effect
for the immediately preceding Interest Period.


 


(c)           All percentages resulting from any
calculations on the Debt Securities will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five one-millionths
of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent
being rounded upward).


 


(d)           On each LIBOR Determination Date, the
Calculation Agent shall notify, in writing, the Company and the Paying Agent of
the applicable Interest Rate that applies to the related Interest Period.  The Calculation Agent shall, upon the
request of a holder of any Debt Securities, inform such holder of the Interest
Rate that applies to the related Interest Period.  All calculations made by the Calculation Agent in the absence of
manifest error shall be conclusive for all purposes and binding on the Company
and the holders of the Debt Securities. 
The Paying Agent shall be entitled to rely on information received from
the Calculation Agent or the Company as to the applicable Interest Rate.  The Company shall, from time to time,
provide any necessary information to the Paying Agent relating to any original
issue discount and interest on the Debt Securities that is included in any
payment and reportable for taxable income calculation purposes.


 


Section 2.11           Extension of Interest Payment
Period.


 


So long as no Event of Default has occurred and is continuing, the
Company shall have the right, from time to time and without causing an Event of
Default, to defer payments of interest on the Debt Securities by extending the
interest payment period on the Debt Securities at any time and from time to
time during the term of the Debt Securities, for up to 20 consecutive quarterly
periods (each such extended interest payment period, together with all previous
and further consecutive extensions thereof, is referred to herein as an “Extension
Period”).  No Extension Period may end
on a date other than an Interest Payment Date or extend beyond the Maturity
Date, any Optional Redemption Date or the Special Redemption Date, as the case
may be.  During any Extension Period,
interest will continue to accrue on the Debt Securities, and interest on such
accrued interest (such accrued interest and interest thereon referred to herein
as “Deferred Interest”) will accrue at an annual rate equal to the Interest
Rate applicable during


 


17

















 


such Extension Period, compounded quarterly from the date such Deferred
Interest would have been payable were it not for the Extension Period, to the
extent permitted by applicable law.  No
interest or Deferred Interest (except any Additional Amounts that may be due
and payable) shall be due and payable during an Extension Period, except at the
end thereof.  At the end of any
Extension Period, the Company shall pay all Deferred Interest then accrued and
unpaid on the Debt Securities; provided, however, that during any
Extension Period, the Company shall be subject to the restrictions set forth in
Section 3.08.  Prior to the termination
of any Extension Period, the Company may further extend such Extension Period, provided,
that no Extension Period (including all previous and further consecutive
extensions that are part of such Extension Period) shall exceed 20 consecutive
quarterly periods.  Upon the termination
of any Extension Period and upon the payment of all Deferred Interest, the
Company may commence a new Extension Period, subject to the foregoing
requirements.  The Company must give the
Trustee notice of its election to begin or extend an Extension Period at least
one Business Day prior to the regular record date applicable to the next
succeeding Interest Payment Date.  The
Trustee shall give notice of the Company’s election to begin or extend an
Extension Period to the Securityholders.


 


Section 2.12           CUSIP Numbers.


 


The Company in issuing
the Debt Securities may use a “CUSIP” number (if then generally in use), and,
if so, the Trustee shall use a “CUSIP” number in notices of redemption as a
convenience to Securityholders; provided, that any such notice may state
that no representation is made as to the correctness of such number either as
printed on the Debt Securities or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Debt Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. 
The Company will promptly notify the Trustee in writing of any change in
the CUSIP number.


 


ARTICLE III

PARTICULAR COVENANTS OF THE COMPANY


 


Section 3.01           Payment of Principal, Premium and
Interest; Agreed Treatment of the Debt Securities.


 


(a)           The Company covenants and agrees that
it will duly and punctually pay or cause to be paid all payments due in respect
of the Debt Securities at the place, at the respective times and in the manner
provided in this Indenture and the Debt Securities.  Payment of the principal of and premium, if any, and interest on
the Debt Securities due on the Maturity Date, any Optional Redemption Date or
the Special Redemption Date, as the case may be, will be made by the Company in
immediately available funds against presentation and surrender of such Debt
Securities.  At the option of the
Company, each installment of interest on the Debt Securities due on an Interest
Payment Date other than the Maturity Date, any Optional Redemption Date or the
Special Redemption Date, as the case may be, may be paid (i) by mailing checks
for such interest payable to the order of the holders of Debt Securities
entitled thereto as they appear on the Debt Security Register or (ii) by wire
transfer of immediately available funds to any account with a banking
institution located in the United States designated


 


18

















 


by such holders to
the Paying Agent no later than the related record date.  Notwithstanding anything to the contrary
contained in this Indenture or any Debt Security, if the Trust or the trustee
of the Trust is the holder of any Debt Security, then all payments in respect
of such Debt Security shall be made by the Company in immediately available
funds when due.


 


(b)           The Company will treat the Debt
Securities as indebtedness, and the interest payable in respect of such Debt
Securities as interest, for all U.S. federal income tax purposes.  All payments in respect of such Debt Securities
will be made free and clear of U.S. withholding tax to any beneficial owner
thereof that has provided an Internal Revenue Service Form W-8 BEN (or any
substitute or successor form) establishing its non-U.S. status for U.S. federal
income tax purposes.


 


(c)           As of the date of this Indenture, the
Company represents that it has no intention to exercise its right under Section
2.11 to defer payments of interest on the Debt Securities by commencing an
Extension Period.


 


(d)           As of the date of this Indenture, the
Company represents that the likelihood that it would exercise its right under
Section 2.11 to defer payments of interest on the Debt Securities by commencing
an Extension Period at any time during which the Debt Securities are
outstanding is remote because of the restrictions that would be imposed on the
Company’s ability to declare or pay dividends or distributions on, or to
redeem, purchase or make a liquidation payment with respect to, any of its
outstanding equity and on the Company’s ability to make any payments of principal
of or premium, if any, or interest on, or repurchase or redeem, any of its debt
securities that rank pari passu in all respects with or junior
in interest to the Debt Securities.


 


Section 3.02           Offices for Notices and Payments,
etc.


 


So long as any of the Debt
Securities remain outstanding, the Company will maintain in Wilmington,
Delaware or in Topeka, Kansas an office or agency where the Debt Securities may
be presented for payment, an office or agency where the Debt Securities may be
presented for registration of transfer and for exchange as provided in this
Indenture and an office or agency where notices and demands to or upon the
Company in respect of the Debt Securities or of this Indenture may be
served.  The Company will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof.  Until
otherwise designated from time to time by the Company in a notice to the
Trustee, or specified as contemplated by Section 2.05, such office or agency
for all of the above purposes shall be the Principal Office of the
Trustee.  In case the Company shall fail
to maintain any such office or agency in Wilmington, Delaware or in Topeka,
Kansas, or shall fail to give such notice of the location or of any change in
the location thereof, presentations and demands may be made and notices may be
served at the Principal Office of the Trustee.


 


In addition to any such
office or agency, the Company may from time to time designate one or more
offices or agencies outside Wilmington, Delaware or Topeka, Kansas where the
Debt Securities may be presented for registration of transfer and for exchange
in the manner provided in this Indenture, and the Company may from time to time
rescind such designation, as the Company may deem desirable or expedient; provided,
however, that no such


 


19

















 


designation or rescission shall in any manner relieve
the Company of its obligation to maintain any such office or agency in
Wilmington, Delaware or in Topeka, Kansas for the purposes above
mentioned.  The Company will give to the
Trustee prompt written notice of any such designation or rescission thereof.


 


Section 3.03           Appointments to Fill Vacancies in
Trustee’s Office.


 


The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 6.09, a Trustee, so that there shall at all
times be a Trustee hereunder.


 


Section 3.04           Provision as to Paying Agent.


 


(a)           If the Company shall appoint a Paying
Agent other than the Trustee, it will cause such Paying Agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provision of this Section 3.04,


 


(i)            that it will hold all sums held by
it as such agent for the payment of all payments due on the Debt Securities
(whether such sums have been paid to it by the Company or by any other obligor
on the Debt Securities) in trust for the benefit of the holders of the Debt
Securities;


 


(ii)           that it will give the Trustee prompt
written notice of any failure by the Company (or by any other obligor on the
Debt Securities) to make any payment on 
the Debt Securities when the same shall be due and payable; and


 


(iii)          that it will, at any time during the
continuance of any Event of Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent.


 


(b)           If the Company shall act as its own
Paying Agent, it will, on or before each due date of the payments due on the
Debt Securities, set aside, segregate and hold in trust for the benefit of the
holders of the Debt Securities a sum sufficient to make such payments so
becoming due and will notify the Trustee in writing of any failure to take such
action and of any failure by the Company (or by any other obligor under the
Debt Securities) to make any payment on the Debt Securities when the same shall
become due and payable.


 


Whenever the Company
shall have one or more Paying Agents for the Debt Securities, it will, on or
prior to each due date of the payments on the Debt Securities, deposit with a
Paying Agent a sum sufficient to pay all payments so becoming due, such sum to
be held in trust for the benefit of the Persons entitled thereto and (unless such
Paying Agent is the Trustee) the Company shall promptly notify the Trustee in
writing of its action or failure to act.


 


(c)           Anything in this Section 3.04 to the
contrary notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge with respect to the Debt Securities, or
for any other reason, pay, or direct any Paying Agent to pay, to the


 


20

















 


Trustee all sums
held in trust by the Company or any such Paying Agent, such sums to be held by
the Trustee upon the same terms and conditions herein contained.


 


(d)           Anything in this Section 3.04 to the
contrary notwithstanding, the agreement to hold sums in trust as provided in
this Section 3.04 is subject to Sections 12.03 and 12.04.


 


(e)           The Company hereby initially appoints
the Trustee to act as paying agent for the Debt Securities (the “Paying
Agent”).


 


Section 3.05           Certificate to Trustee.


 


The Company will deliver
to the Trustee on or before 120 days after the end of each fiscal year, so long
as Debt Securities are outstanding hereunder, a Certificate stating that in the
course of the performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default by the Company in the
performance of any covenants of the Company contained herein, stating whether
or not they have knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature thereof.


 


Section 3.06           Additional Amounts.


 


If and for so long as the
Trust is the holder of all Debt Securities and is subject to or otherwise
required to pay (or is required to withhold from distributions to holders of
Trust Securities) any additional taxes (including withholding taxes), duties,
assessments or other governmental charges as a result of a Tax Event, the
Company will pay such additional amounts (the “Additional Amounts”) on the Debt
Securities or the Trust Securities, as the case may be, as shall be required so
that the net amounts received and retained by the holders of Debt Securities or
Trust Securities, as the case may be, after payment of all taxes (including
withholding taxes), duties, assessments or other governmental charges, will be
equal to the amounts that such holders would have received and retained had no
such taxes (including withholding taxes), duties, assessments or other
governmental charges been imposed.


 


Whenever in this
Indenture or the Debt Securities there is a reference in any context to the
payment of principal of or premium, if any, or interest on the Debt Securities,
such mention shall be deemed to include mention of payments of the Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made, provided, however, that, notwithstanding
anything to the contrary contained in this Indenture or any Debt Security, the
deferral of the payment of interest during an Extension Period pursuant to
Section 2.11 shall not defer the payment of any Additional Amounts that may be
due and payable.


 


21

















 


Section 3.07           Compliance with Consolidation
Provisions.


 


The Company will not,
while any of the Debt Securities remain outstanding, consolidate with, or merge
into, any other Person, or merge into itself, or sell, convey, transfer or
otherwise dispose of all or substantially all of its property or capital stock
to any other Person unless the provisions of Article XI hereof are complied
with.


 


Section 3.08           Limitation on Dividends.


 


If (i) there shall have
occurred and be continuing an Event of Default, (ii) the Company shall be in
default with respect to its payment of any obligations under the Capital
Securities Guarantee or (iii) the Company shall have given notice of its
election to defer payments of interest on the Debt Securities by extending the
interest payment period as provided herein and such period, or any extension
thereof, shall have commenced and be continuing, then the Company may not (A)
declare or pay any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the Company’s capital
stock, (B) make any payment of principal of or premium, if any, or interest on
or repay, repurchase or redeem any debt securities of the Company that rank pari passu in
all respects with or junior in interest to the Debt Securities or (C) make any
payment under any guarantees of the Company that rank pari passu in all respects
with or junior in interest to the Capital Securities Guarantee (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of
the Company (I) in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, (II) in connection with a dividend
reinvestment or stockholder stock purchase plan or (III) in connection with the
issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the occurrence of (i), (ii) or (iii) above,
(b) as a result of any exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or
series of the Company’s indebtedness for any class or series of the Company’s
capital stock, (c) the purchase of fractional interests in shares of the
Company’s capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholder’s rights plan, or
the issuance of rights, stock or other property under any stockholder’s rights
plan, or the redemption or repurchase of rights pursuant thereto or (e) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari
passu with or junior in interest to such stock).


 


Section 3.09           Covenants as to the Trust.


 


For so long as such Trust
Securities remain outstanding, the Company shall maintain 100% ownership of the
Common Securities; provided, however, that any permitted
successor of the Company under this Indenture may succeed to the Company’s
ownership of such Common Securities.  The
Company, as owner of the Common Securities, shall use commercially reasonable
efforts to cause the Trust (a) to remain a statutory trust, except in


 


22

















 


connection with a distribution of Debt Securities to
the holders of Trust Securities in liquidation of the Trust, the redemption of
all of the Trust Securities or mergers, consolidations or amalgamations, each
as permitted by the Declaration, (b) to otherwise continue to be classified as
a grantor trust for United States federal income tax purposes and (c) to cause
each holder of Trust Securities to be treated as owning an undivided beneficial
interest in the Debt Securities.


 


ARTICLE IV

LISTS


 


Section 4.01           Securityholders’ Lists.


 


The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee:


 


(a)           on each regular record date for an
Interest Payment Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Securityholders of the Debt Securities
as of such record date; and


 


(b)           at such other times as the Trustee
may request in writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished; except that no such lists need
be furnished under this Section 4.01 so long as the Trustee is in possession
thereof by reason of its acting as Debt Security registrar.


 


Section 4.02           Preservation and Disclosure of
Lists.


 


(a)           The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names
and addresses of the holders of Debt Securities (1) contained in the most
recent list furnished to it as provided in Section 4.01 or (2) received by it
in the capacity of Debt Securities registrar (if so acting) hereunder.  The Trustee may destroy any list furnished
to it as provided in Section 4.01 upon receipt of a new list so furnished.


 


(b)           In case three or more holders of Debt
Securities (hereinafter referred to as “applicants”) apply in writing to the
Trustee and furnish to the Trustee reasonable proof that each such applicant
has owned a Debt Security for a period of at least six months preceding the
date of such application, and such application states that the applicants
desire to communicate with other holders of Debt Securities with respect to
their rights under this Indenture or under such Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within five Business Days after the
receipt of such application, at its election, either:


 


(i)            afford such applicants access to the
information preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02, or


 


(ii)           inform such applicants as to the
approximate number of holders of Debt Securities whose names and addresses
appear in the information preserved at the


 


23

















 


time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.02, and as
to the approximate cost of mailing to such Securityholders the form of proxy or
other communication, if any, specified in such application.


 


If the Trustee shall
elect not to afford such applicants access to such information, the Trustee
shall, upon the written request of such applicants, mail to each Securityholder
of Debt Securities whose name and address appear in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.02 a copy of the form of proxy or other communication which
is specified in such request with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, if permitted or required by applicable law,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of all Debt Securities, as the case may be, or
would be in violation of applicable law. 
Such written statement shall specify the basis of such opinion.  If said Commission, as permitted or required
by applicable law, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order sustaining
one or more of such objections, said Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Securityholders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their application.


 


(c)           Each and every holder of Debt
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that none of the Company, the Trustee or any Paying Agent shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Debt Securities in accordance with the
provisions of subsection (b) of this Section 4.02, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).


 


Section 4.03           Financial and Other Information.


 


(a)           The Company shall deliver to each
Securityholder (1) each Report on Form 10-K and Form 10-Q
prepared by the Company and filed with the Securities and Exchange Commission
in accordance with the Exchange Act within 30 days after the filing thereof,
(2) if the Company is not then (y) subject to Section 13 or 15(d) of
the Exchange Act or (z) exempt from reporting pursuant to
Rule 12g3-2(b) thereunder, the information required to be provided by Rule
144A(d)(4) under the Securities Act and (3) within 30 days after the end
of the fiscal year of the Company, Form 1099 or such other annual U.S. federal
income tax information statement required by the Code containing such
information with regard to the Debt Securities held by such holder as is
required by the Code and the income tax regulations of the U.S. Treasury
thereunder.


 


24

















 


(b)           If and so long as a Holder of the
Debt Securities is ALESCO Preferred Funding II, Ltd. or a trustee thereof, the
Company will cause copies of its reports on Form FR  Y-9C and Form FR Y-9LP to be delivered to the Holder promptly
following their filing with the Federal Reserve.


 


ARTICLE V

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS


 


Section 5.01           Events of Default.


 


The following events
shall be “Events of Default” with respect to Debt Securities:


 


(a)           the Company defaults in the payment
of any interest upon any Debt Security when it becomes due and payable, and
continuance of such default for a period of 30 days; for the avoidance of
doubt, an extension of any interest payment period by the Company in accordance
with Section 2.11 of this Indenture shall not constitute a default under this
clause 5.01(a); or


 


(b)           the Company defaults in the payment
of all or any part of the principal of (or premium, if any, on) any Debt Securities
as and when the same shall become due and payable, whether at maturity, upon
redemption, by acceleration of maturity pursuant to Section 5.01 of this
Indenture or otherwise; or


 


(c)           the Company defaults in the
performance of, or breaches, any of its covenants or agreements in Sections
3.06, 3.07, 3.08 or 3.09 of this Indenture (other than a covenant or agreement
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the holders
of not less than 25% in aggregate principal amount of the outstanding Debt
Securities, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or


 


(d)           a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the Company in
an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appoints a receiver, liquidator,
assignee, custodian, trustee, sequestrator or other similar official of the
Company or for any substantial part of its property, or orders the winding-up
or liquidation of its affairs and such decree, appointment or order shall
remain unstayed and in effect for a period of 90 consecutive days; or


 


(e)           the Company shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Company or of any
substantial part of its property, or shall make any general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due; or


 


25

















 


(f)            the Trust shall have voluntarily or
involuntarily liquidated, dissolved, wound-up its business or otherwise
terminated its existence except in connection with (1) the distribution of the
Debt Securities to holders of the Trust Securities in liquidation of their
interests in the Trust, (2) the redemption of all of the outstanding Trust
Securities or (3) mergers, consolidations or amalgamations, each as permitted
by the Declaration.


 


If an Event of Default
specified under clause (a), (b) or (c) of this Section 5.01 occurs and is
continuing with respect to the Debt Securities, then, in each and every such
case, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debt Securities then outstanding hereunder, by notice
in writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal of the Debt Securities and any premium and
interest accrued, but unpaid, thereon to be due and payable immediately, and
upon any such declaration the same shall become immediately due and
payable.  If an Event of Default
specified under clause (d), (e) or (f) of this Section 5.01 occurs, then, in
each and every such case, the entire principal amount of the Debt Securities
and any premium and interest accrued, but unpaid, thereon shall ipso  facto
become immediately due and payable without further action.


 


The foregoing provisions,
however, are subject to the condition that if, at any time after the principal
of the Debt Securities shall have become due by acceleration, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, (i) the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Debt Securities and all payments on the Debt Securities which
shall have become due otherwise than by acceleration (with interest upon all
such payments and Deferred Interest, to the extent permitted by law) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee
and each predecessor Trustee, their respective agents, attorneys and counsel,
and all other amounts due to the Trustee pursuant to Section 6.06, if any, and
(ii) all Events of Default under this Indenture, other than the non-payment of
the payments in respect of Debt Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then, in each and every such case, the holders of a majority in
aggregate principal amount of the Debt Securities then outstanding, by written
notice to the Company and to the Trustee, may waive all defaults and rescind
and annul such acceleration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon; provided, however,
that if the Debt Securities are held by the Trust or a trustee of the Trust,
such waiver or rescission and annulment shall not be effective until the
holders of a majority in aggregate liquidation amount of the outstanding
Capital Securities of the Trust shall have consented to such waiver or
rescission and annulment.


 


In case the Trustee shall
have proceeded to enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to
the Trustee, then and in every such case the Company, the Trustee and the
holders of the Debt Securities shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the holders of the Debt Securities shall continue as
though no such proceeding had been taken.


 


26

















 


Section 5.02           Payment of Debt Securities on
Default; Suit Therefor.


 


The Company covenants
that upon the occurrence of an Event of Default pursuant to clause (a) or (b)
of Section 5.01 and upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Debt Securities, the whole
amount that then shall have become due and payable on all Debt Securities,
including Deferred Interest accrued on the Debt Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any other amounts due to the Trustee under
Section 6.06.  In case the Company shall
fail forthwith to pay such amounts upon such demand, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and empowered to
institute any actions or proceedings at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree against
the Company or any other obligor on such Debt Securities and collect in the
manner provided by law out of the property of the Company or any other obligor
on such Debt Securities wherever situated the moneys adjudged or decreed to be
payable.


 


In case there shall be
pending proceedings for the bankruptcy or for the reorganization of the Company
or any other obligor on the Debt Securities under Bankruptcy Law, or in case a
receiver or trustee shall have been appointed for the property of the Company or
such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Debt Securities, or to the
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debt Securities shall then be due
and payable as therein expressed or by acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and interest owing and unpaid in
respect of the Debt Securities and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all other
amounts due to the Trustee under Section 6.06) and of the Securityholders
allowed in such judicial proceedings relative to the Company or any other
obligor on the Debt Securities, or to the creditors or property of the Company
or such other obligor, unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Debt Securities in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or Person performing similar
functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by
each of the Securityholders to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
the Securityholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other amounts due to
the Trustee under Section 6.06.


 


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Nothing herein contained
shall be construed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Debt Securities or the
rights of any holder thereof or to authorize the Trustee to vote in respect of
the claim of any Securityholder in any such proceeding.


 


All rights of action and
of asserting claims under this Indenture, or under any of the Debt Securities,
may be enforced by the Trustee without the possession of any of the Debt
Securities, or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be for the ratable benefit of the holders of the Debt
Securities.


 


In any proceedings
brought by the Trustee (and also any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party), the
Trustee shall be held to represent all the holders of the Debt Securities, and
it shall not be necessary to make any holders of the Debt Securities parties to
any such proceedings.


 


Section 5.03           Application of Moneys Collected by
Trustee.


 


Any moneys collected by
the Trustee shall be applied in the following order, at the date or dates fixed
by the Trustee for the distribution of such moneys, upon presentation of the
several Debt Securities in respect of which moneys have been collected, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:


 


First: To the payment of
costs and expenses incurred by, and reasonable fees of, the Trustee, its
agents, attorneys and counsel, and of all other amounts due to the Trustee
under Section 6.06;


 


Second: To the payment of
all Senior Indebtedness of the Company if and to the extent required by Article
XV;


 


Third:  To the payment of the amounts then due and
unpaid upon Debt Securities, in respect of which or for the benefit of which
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due upon such Debt Securities; and


 


Fourth: The balance, if
any, to the Company.


 


Section 5.04           Proceedings by Securityholders.


 


No holder of any Debt
Security shall have any right to institute any suit, action or proceeding for
any remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default with respect to the Debt
Securities and unless the holders of not less than 25% in aggregate principal
amount of the Debt Securities then outstanding shall have given the Trustee a
written request to institute such action, suit or proceeding and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred thereby, and the Trustee for 60
days after


 


28

















 


its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action, suit or proceeding; provided,
that no holder of Debt Securities shall have any right to prejudice the rights
of any other holder of Debt Securities, obtain priority or preference over any
other such holder or enforce any right under this Indenture except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Debt Securities.


 


Notwithstanding any other
provisions in this Indenture, the right of any holder of any Debt Security to
receive payment of the principal of and premium, if any, and interest on such
Debt Security when due, or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of such
holder.  For the protection and
enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.


 


Section 5.05           Proceedings by Trustee.


 


In case of an Event of
Default, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.


 


Section 5.06           Remedies Cumulative and Continuing.


 


Except as otherwise
provided in Section 2.06, all powers and remedies given by this Article V to
the Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and remedies available
to the Trustee or the holders of the Debt Securities, by judicial proceedings
or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to
the Debt Securities, and no delay or omission of the Trustee or of any holder
of any of the Debt Securities to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.


 


Section 5.07           Direction of Proceedings and
Waiver of Defaults by Majority of Securityholders.


 


The holders of a majority
in aggregate principal amount of the Debt Securities affected at the time
outstanding and, if the Debt Securities are held by the Trust or a trustee of
the Trust, the holders of a majority in aggregate liquidation amount of the
outstanding Capital Securities of the Trust shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to such Debt Securities; provided, however, that if the
Debt Securities


 


29

















 


are held by the Trust or a trustee of the Trust, such
time, method and place or such exercise, as the case may be, may not be so
directed until the holders of a majority in aggregate liquidation amount of the
outstanding Capital Securities of the Trust shall have directed such time,
method and place or such exercise, as the case may be; provided, further,
that (subject to the provisions of Section 6.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee shall determine
that the action so directed would be unjustly prejudicial to the holders not
taking part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if a Responsible Officer of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability.  Prior to any declaration of acceleration, or
ipso  facto acceleration, of the maturity of the Debt Securities,
the holders of a majority in aggregate principal amount of the Debt Securities
at the time outstanding may on behalf of the holders of all of the Debt
Securities waive (or modify any previously granted waiver of) any past Default
or Event of Default and its consequences, except a default (a) in the payment
of principal of or premium, if any, or interest on any of the Debt Securities,
(b) in respect of covenants or provisions hereof which cannot be modified or
amended without the consent of the holder of each Debt Security affected, or
(c)  in respect of the covenants
contained in Section 3.09; provided, however, that if the Debt
Securities are held by the Trust or a trustee of the Trust, such waiver or
modification to such waiver shall not be effective until the holders of a
majority in aggregate liquidation amount of the outstanding Capital Securities
of the Trust shall have consented to such waiver or modification to such
waiver; provided, further, that if the consent of the holder of
each outstanding Debt Security is required, such waiver or modification to such
waiver shall not be effective until each holder of the outstanding Capital
Securities of the Trust shall have consented to such waiver or modification to
such waiver.  Upon any such waiver or
modification to such waiver, the Default or Event of Default covered thereby shall
be deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Debt Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver or
modification to such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon.  Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this Section, said Default or
Event of Default shall for all purposes of the Debt Securities and this
Indenture be deemed to have been cured and to be not continuing.


 


Section 5.08           Notice of Defaults.


 


The Trustee shall, within
90 days after a Responsible Officer of the Trustee shall have actual knowledge
or received written notice of the occurrence of a default with respect to the
Debt Securities, mail to all Securityholders, as the names and addresses of
such holders appear upon the Debt Security Register, notice of all defaults
with respect to the Debt Securities known to the Trustee, unless such defaults
shall have been cured before the giving of such notice (the term “default” for
the purpose of this Section is hereby defined to be any event specified in
Section 5.01, not including periods of grace, if any, provided for therein); provided,
that, except in the case of default in the payment of the principal of
or premium, if any, or interest on any of the Debt Securities, the Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders.


 


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Section 5.09           Undertaking to Pay Costs.


 


All parties to this
Indenture agree, and each holder of any Debt Security by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of
the outstanding Debt Securities (or, if such Debt Securities are held by the
Trust or a trustee of the Trust, more than 10% in liquidation amount of the
outstanding Capital Securities),to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of or premium, if any, or
interest on any Debt Security against the Company on or after the same shall
have become due and payable or to any suit instituted in accordance with
Section 14.12.


 


ARTICLE VI

CONCERNING THE TRUSTEE


 


Section 6.01           Duties and Responsibilities of
Trustee.


 


With respect to the
holders of Debt Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Debt Securities and after
the curing or waiving of all Events of Default which may have occurred, with
respect to the Debt Securities, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture.  In case an Event of Default with respect to
the Debt Securities has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of such
person’s own affairs.


 


No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct or bad faith, except that:


 


(a)           prior to the occurrence of an Event
of Default and after the curing or waiving of all Events of Default which may
have occurred:


 


(i)            the duties and obligations of the
Trustee with respect to the Debt Securities shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations with respect to the
Debt Securities as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and


 


31

















 


(ii)           in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform on their face to the requirements of this
Indenture;


 


(b)           the Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer or Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;


 


(c)           the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith, in
accordance with the direction of the Securityholders pursuant to Section 5.07,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; and


 


(d)           the Trustee shall not be charged with
knowledge of any Default or Event of Default with respect to the Debt
Securities unless either (1) a Responsible Officer shall have actual knowledge
of such Default or Event of Default or (2) written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or any
other obligor on the Debt Securities or by any holder of the Debt Securities,
except that the Trustee shall be deemed to have knowledge of any Event of
Default pursuant to Sections 5.01(a) or 5.01(b) hereof (other than an Event of
Default resulting from the default in the payment of Additional Amounts if the
Trustee does not have actual knowledge or written notice that such payment is
due and payable) .


 


None of the provisions
contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers.


 


Section 6.02           Reliance on Documents, Opinions,
etc.


 


Except as otherwise
provided in Section 6.01:


 


(a)           the Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, debenture or other paper or document believed
by it in good faith to be genuine and to have been signed or presented by the
proper party or parties;


 


(b)           any request, direction, order or
demand of the Company mentioned herein shall be sufficiently evidenced by an
Officers’ Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant Secretary
of the Company;


 


32

















 


(c)           the Trustee may consult with counsel
of its selection and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;


 


(d)           the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;


 


(e)           the Trustee shall not be liable for
any action taken or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred upon it
by this Indenture; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default with respect to
the Debt Securities (which has not been cured or waived) to exercise with
respect to the Debt Securities such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs;


 


(f)            the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or document, unless
requested in writing to do so by the holders of a majority in aggregate
principal amount of the outstanding Debt Securities affected thereby; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding; and


 


(g)           the Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
by or through agents (including any Authenticating Agent) or attorneys, and the
Trustee shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed by it with due care.


 


Section 6.03           No Responsibility for Recitals,
etc.


 


The recitals contained
herein and in the Debt Securities (except in the certificate of authentication
of the Trustee or the Authenticating Agent) shall be taken as the statements of
the Company, and the Trustee and the Authenticating Agent assume no
responsibility for the correctness of the same.  The Trustee and the Authenticating Agent make no representations
as to the validity or sufficiency of this Indenture or of the Debt Securities.  The Trustee and the Authenticating Agent
shall not be accountable for the use or application by the Company of any Debt
Securities or the proceeds of any Debt Securities authenticated and delivered
by the Trustee or the Authenticating Agent in conformity with the provisions of
this Indenture.


 


33

















 


Section 6.04           Trustee, Authenticating Agent,
Paying Agents, Transfer Agents or Registrar May Own Debt Securities.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any transfer agent or any Debt Security
registrar, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, transfer agent or Debt Security
registrar.


 


Section 6.05           Moneys to be Held in Trust.


 


Subject to the provisions
of Section 12.04, all moneys received by the Trustee or any Paying Agent shall,
until used or applied as herein provided, be held in trust for the purpose for
which they were received, but need not be segregated from other funds except to
the extent required by law.  The Trustee
and any Paying Agent shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed in writing with the Company.  So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys, if any,
shall be paid from time to time to the Company upon the written order of the
Company, signed by the Chairman of the Board of Directors, the President, the
Chief Operating Officer, a Vice President, the Treasurer or an Assistant
Treasurer of the Company.


 


Section 6.06           Compensation and Expenses of
Trustee.


 


The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing between the
Company and the Trustee (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and the Company
will pay or reimburse the Trustee upon its written request for all documented
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance that arises from its negligence, willful
misconduct or bad faith.  The Company
also covenants to indemnify each of the Trustee (including in its individual
capacity) and any predecessor Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the Trustee), except to the extent such loss, damage, claim,
liability or expense results from the negligence, willful misconduct or bad
faith of such indemnitee, arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of defending
itself against any claim or liability in the premises.  The obligations of the Company under this
Section to compensate and indemnify the Trustee and to pay or reimburse the
Trustee for documented expenses, disbursements and advances shall constitute
additional indebtedness hereunder.  Such
additional indebtedness shall be secured by a lien prior to that of the Debt
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Debt Securities.


 


34

















 


Without prejudice to any
other rights available to the Trustee under applicable law, when the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in clause (d), (e) or (f) of Section 5.01, the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for
the services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.


 


The provisions of this
Section shall survive the resignation or removal of the Trustee and the defeasance
or other termination of this Indenture.


 


Notwithstanding anything
in this Indenture or any Debt Security to the contrary, the Trustee shall have
no obligation whatsoever to advance funds to pay any principal of or interest
on or other amounts with respect to the Debt Securities or otherwise advance
funds to or on behalf of the Company.


 


Section 6.07           Officers’ Certificate as Evidence.


 


Except as otherwise
provided in Sections 6.01 and 6.02, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence, willful misconduct
or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee, and such
certificate, in the absence of negligence, willful misconduct or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture upon the faith
thereof.


 


Section 6.08           Eligibility of Trustee.


 


The Trustee hereunder
shall at all times be a U.S. Person that is a banking corporation or national
association organized and doing business under the laws of the United States of
America or any state thereof or of the District of Columbia and authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least fifty million U.S. dollars ($50,000,000) and subject to
supervision or examination by federal, state, or District of Columbia
authority.  If such corporation or
national association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such corporation or national association shall be deemed to be its
combined capital and surplus as set forth in its most recent records of
condition so published.


 


The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee, notwithstanding that such
corporation or national association shall be otherwise eligible and qualified
under this Article.


 


35

















 


In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.09.


 


If the Trustee has or
shall acquire any “conflicting interest” within the meaning of §310(b) of the
Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to, this
Indenture.


 


Section 6.09           Resignation or Removal of Trustee.


 


(a)           The Trustee, or any trustee or
trustees hereafter appointed, may at any time resign by giving written notice
of such resignation to the Company and by mailing notice thereof, at the
Company’s expense, to the holders of the Debt Securities at their addresses as
they shall appear on the Debt Security Register.  Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees by written instrument, in
duplicate, executed by order of its Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee.  If no successor
Trustee shall have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Debt Security or Debt Securities for at
least six months may, subject to the provisions of Section 5.09, on behalf of himself
or herself and all others similarly situated, petition any such court for the
appointment of a successor Trustee. 
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.


 


(b)           In case at any time any of the
following shall occur:


 


(i)            the Trustee shall fail to comply
with the provisions of the last paragraph of Section 6.08 after written request
therefor by the Company or by any Securityholder who has been a bona fide
holder of a Debt Security or Debt Securities for at least six months;


 


(ii)           the Trustee shall cease to be
eligible in accordance with the provisions of Section 6.08 and shall fail to
resign after written request therefor by the Company or by any such
Securityholder; or


 


(iii)          the Trustee shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,


 


then, in any such case,
the Company may remove the Trustee and appoint a successor Trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy
to the successor Trustee, or, subject to the provisions of Section 5.09, if no
successor Trustee shall have been so appointed and have accepted appointment
within 30 days of the occurrence of any of (i), (ii) or (iii) above,


 


36

















 


any Securityholder who
has been a bona fide holder of a Debt Security or Debt Securities for at least
six months may, on behalf of himself or herself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.  Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor Trustee.


 


(c)           Upon prior written notice to the
Company and the Trustee, the holders of a majority in aggregate principal
amount of the Debt Securities at the time outstanding may at any time remove
the Trustee and nominate a successor Trustee, which shall be deemed appointed
as successor Trustee unless within ten Business Days after such nomination the
Company objects thereto, in which case or in the case of a failure by such
holders to nominate a successor Trustee, the Trustee so removed or any
Securityholder, upon the terms and conditions and otherwise as in subsection
(a) of this Section, may petition any court of competent jurisdiction for an
appointment of a successor.


 


(d)           Any resignation or removal of the
Trustee and appointment of a successor Trustee pursuant to any of the
provisions of this Section shall become effective upon acceptance of
appointment by the successor Trustee as provided in Section 6.10.


 


Section 6.10           Acceptance by Successor Trustee.


 


Any successor Trustee
appointed as provided in Section 6.09 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all of the rights, powers, trusts and duties of the retiring
Trustee shall be vested in the successor Trustee, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to the Debt
Securities of its predecessor hereunder, with like effect as if originally
named as Trustee herein; but, nevertheless, on the written request of the
Company or of the successor Trustee, the Trustee ceasing to act shall, upon
payment of the amounts then due it pursuant to the provisions of Section 6.06,
execute and deliver an instrument transferring to such successor Trustee all
the rights and powers of the Trustee so ceasing to act and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.  Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor Trustee all such rights and powers.  Any Trustee ceasing to act shall, nevertheless, retain a lien
upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 6.06.


 


No successor Trustee
shall accept appointment as provided in this Section unless at the time of such
acceptance such successor Trustee shall be eligible and qualified under the
provisions of Section 6.08.


 


In no event shall a
retiring Trustee be liable for the acts or omissions of any successor Trustee
hereunder.


 


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Upon acceptance of appointment by a successor Trustee
as provided in this Section, the Company shall mail notice of the succession of
such Trustee hereunder to the holders of Debt Securities at their addresses as
they shall appear on the Debt Security Register.  If the Company fails to mail such notice within ten Business Days
after the acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Company.


 


Section 6.11                                Succession
by Merger, etc.


 


Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided, that such corporation
shall be otherwise eligible and qualified under this Article.


 


In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any of the Debt
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Debt Securities so authenticated; and in case at that
time any of the Debt Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificates shall have the full force which it is
anywhere in the Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Debt Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.


 


Section 6.12                                Authenticating
Agents.


 


There may be one or more Authenticating Agents
appointed by the Trustee upon the request of the Company with power to act on
its behalf and subject to its direction in the authentication and delivery of
Debt Securities issued upon exchange or registration of transfer thereof as
fully to all intents and purposes as though any such Authenticating Agent had
been expressly authorized to authenticate and deliver Debt Securities; provided,
however, that the Trustee shall have no liability to the Company for any
acts or omissions of the Authenticating Agent with respect to the
authentication and delivery of Debt Securities.  Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any
state thereof or of the District of Columbia authorized under such laws to act
as Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and being subject to supervision or examination by federal, state
or District of Columbia authority.  If
such corporation publishes reports of condition at least annually pursuant to
law or the requirements of such authority, then for the purposes of this
Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
an Authenticating


 


38

















 


Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect herein specified in this Section.


 


Any corporation into which any Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authenticating Agent.


 


Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the
agency of any Authenticating Agent with respect to the Debt Securities by
giving written notice of termination to such Authenticating Agent and to the
Company.  Upon receiving such a notice
of resignation or upon such a termination, or in case at any time any Authenticating
Agent shall cease to be eligible under this Section, the Trustee may, and upon
the request of the Company shall, promptly appoint a successor Authenticating
Agent eligible under this Section, shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all
holders of Debt Securities as the names and addresses of such holders appear on
the Debt Security Register.  Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein.


 


The Company agrees to pay to any Authenticating Agent
from time to time reasonable compensation for its services.  Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.


 


ARTICLE VII


CONCERNING THE SECURITYHOLDERS


 


Section 7.01                                Action
by Securityholders.


 


Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Debt
Securities or aggregate liquidation amount of the Capital Securities may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action the holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders or holders of
Capital Securities, as the case may be, in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Debt Securities
voting in favor thereof at any meeting of such Securityholders duly called and
held in accordance with the provisions of Article VIII or of such holders of
Capital Securities duly called and held in accordance with the provisions of
the Declaration, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of such Securityholders or holders of Capital
Securities, as the case may be, or (d) by any other method the Trustee deems
satisfactory.


 


39

















 


If the Company shall solicit from the Securityholders
any request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, the Company may, at its option, as evidenced
by an Officers’ Certificate, fix in advance a record date for such Debt
Securities for the determination of Securityholders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, but the Company shall have no obligation to
do so.  If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action or revocation of the same may be given before or after the record
date, but only the Securityholders of record at the close of business on the
record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of outstanding
Debt Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, and for that purpose the outstanding Debt Securities shall be
computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


Section 7.02                                Proof
of Execution by Securityholders.


 


Subject to the provisions of Sections 6.01, 6.02 and
8.05, proof of the execution of any instrument by a Securityholder or such
Securityholder’s agent or proxy shall be sufficient if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee.  The ownership of Debt Securities shall be proved by the Debt
Security Register or by a certificate of the Debt Security registrar.  The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem necessary.


 


The record of any Securityholders’ meeting shall be
proved in the manner provided in Section 8.06.


 


Section 7.03                                Who
Are Deemed Absolute Owners.


 


Prior to due presentment for registration of transfer
of any Debt Security, the Company, the Trustee, any Authenticating Agent, any
Paying Agent, any transfer agent and any Debt Security registrar may deem the
Person in whose name such Debt Security shall be registered upon the Debt
Security Register to be, and may treat such Person as, the absolute owner of
such Debt Security (whether or not such Debt Security shall be overdue) for the
purpose of receiving payment of or on account of the principal of and premium,
if any, and interest on such Debt Security and for all other purposes; and none
of the Company, the Trustee, any Authenticating Agent, any Paying Agent, any
transfer agent or any Debt Security registrar shall be affected by any notice
to the contrary.  All such payments so
made to any holder for the time being or upon such holder’s order shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Debt Security.


 


40

















 


Section 7.04                                Debt
Securities Owned by Company Deemed Not Outstanding.


 


In determining whether the holders of the requisite
aggregate principal amount of Debt Securities have concurred in any direction,
consent or waiver under this Indenture, Debt Securities which are owned by the
Company or any other obligor on the Debt Securities or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company (other than the Trust) or any other obligor on the
Debt Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, provided, that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debt Securities which a Responsible Officer
of the Trustee actually knows are so owned shall be so disregarded.  Debt Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section if the pledgee shall establish to the satisfaction of the Trustee the
pledgee’s right to vote such Debt Securities and that the pledgee is not the
Company or any such other obligor or Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any such other obligor.  In the case of
a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.


 


Section 7.05                                Revocation
of Consents; Future Holders Bound.


 


At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 7.01, of the taking of any action by the
holders of the percentage in aggregate principal amount of the Debt Securities
specified in this Indenture in connection with such action, any holder (in
cases where no record date has been set pursuant to Section 7.01) or any holder
as of an applicable record date (in cases where a record date has been set
pursuant to Section 7.01) of a Debt Security (or any Debt Security issued in
whole or in part in exchange or substitution therefor) the serial number of
which is shown by the evidence to be included in the Debt Securities the
holders of which have consented to such action may, by filing written notice
with the Trustee at the Principal Office of the Trustee and upon proof of
holding as provided in Section 7.02, revoke such action so far as concerns such
Debt Security (or so far as concerns the principal amount represented by any
exchanged or substituted Debt Security). 
Except as aforesaid any such action taken by the holder of any Debt
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Debt Security, and of any Debt Security issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or any Debt Security issued in exchange or substitution therefor.


 


ARTICLE VIII


SECURITYHOLDERS’ MEETINGS


 


Section 8.01                                Purposes
of Meetings.


 


A meeting of Securityholders may be called at any time
and from time to time pursuant to the provisions of this Article VIII for any
of the following purposes:


 


(a)                                  to
give any notice to the Company or to the Trustee, or to give any directions to
the Trustee, or to consent to the waiving of any default hereunder and its


 


41

















 


consequences, or
to take any other action authorized to be taken by Securityholders pursuant to
any of the provisions of Article V;


 


(b)                                 to
remove the Trustee and nominate a successor trustee pursuant to the provisions
of Article VI;


 


(c)                                  to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 9.02; or


 


(d)                                 to
take any other action authorized to be taken by or on behalf of the holders of
any specified aggregate principal amount of such Debt Securities under any
other provision of this Indenture or under applicable law.


 


Section 8.02                                Call
of Meetings by Trustee.


 


The Trustee may at any time call a meeting of
Securityholders to take any action specified in Section 8.01, to be held at
such time and at such place in The City of New York, the Borough of Manhattan,
or Wilmington, Delaware, as the Trustee shall determine.  Notice of every meeting of the
Securityholders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Debt Securities affected at their addresses as they shall appear
on the Debt Securities Register.  Such
notice shall be mailed not less than 20 nor more than 180 days prior to the
date fixed for the meeting.


 


Section 8.03                                Call
of Meetings by Company or Securityholders.


 


In case at any time the Company pursuant to a Board
Resolution, or the holders of at least 10% in aggregate principal amount of the
Debt Securities, as the case may be, then outstanding, shall have requested the
Trustee to call a meeting of Securityholders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Securityholders may determine
the time and the place in Topeka, Kansas for such meeting and may call such
meeting to take any action authorized in Section 8.01, by mailing notice
thereof as provided in Section 8.02.


 


Section 8.04                                Qualifications
for Voting.


 


To be entitled to vote at any meeting of Securityholders,
a Person shall be (a) a holder of one or more Debt Securities or (b) a Person
appointed by an instrument in writing as proxy by a holder of one or more Debt
Securities.  The only Persons who shall
be entitled to be present or to speak at any meeting of Securityholders shall
be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.


 


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Section 8.05                                Regulations.


 


Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Debt Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall deem
appropriate.


 


The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Securityholders as provided in Section 8.03, in
which case the Company or the Securityholders calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by majority vote at
the meeting.


 


Subject to the provisions of Section 7.04, at any
meeting each holder of Debt Securities with respect to which such meeting is
being held or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Debt Securities held or represented by such holder; provided,
however, that no vote shall be cast or counted at any meeting in respect
of any Debt Security challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding.  The
chairman of the meeting shall have no right to vote other than by virtue of
Debt Securities held by such chairman or instruments in writing as aforesaid
duly designating such chairman as the Person to vote on behalf of other
Securityholders.  Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without
further notice.


 


Section 8.06                                Voting.


 


The vote upon any resolution submitted to any meeting
of holders of Debt Securities with respect to which such meeting is being held
shall be by written ballots on which shall be subscribed the signatures of such
holders or of their representatives by proxy and the serial number or numbers
of the Debt Securities held or represented by them.  The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02.  The record shall show the serial numbers of
the Debt Securities voting in favor of or against any resolution. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.


 


43

















 


Any record so signed and verified shall be conclusive
evidence of the matters therein stated.


 


Section 8.07                                Quorum;
Actions.


 


The Persons entitled to vote a majority in aggregate
principal amount of the Debt Securities then outstanding shall constitute a
quorum for a meeting of Securityholders; provided, however, that
if any action is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action which may be
given by the holders of not less than a specified percentage in aggregate
principal amount of the Debt Securities then outstanding, the Persons holding
or representing such specified percentage in aggregate principal amount of the
Debt Securities then outstanding will constitute a quorum.  In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Securityholders, be dissolved. 
In any other case, the meeting may be adjourned for a period of not less
than 10 days as determined by the permanent chairman of the meeting prior to
the adjournment of such meeting.  In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such adjourned
meeting.  Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 8.02, except that
such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the aggregate principal amount
of the Debt Securities then outstanding which shall constitute a quorum.


 


Except as limited by the proviso in the first
paragraph of Section 9.02, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the holders of a majority in aggregate
principal amount of the Debt Securities then outstanding; provided, however,
that, except as limited by the proviso in the first paragraph of Section 9.02,
any resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action that this Indenture expressly provides
may be given by the holders of not less than a specified percentage in
outstanding principal amount of the Debt Securities may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the holders of not less than such
specified percentage in aggregate principal amount of the Debt Securities then
outstanding.


 


Any resolution passed or decision taken at any meeting
of holders of Debt Securities duly held in accordance with this Section shall
be binding on all the Securityholders, whether or not present or represented at
the meeting.


 


44

















 


ARTICLE IX


SUPPLEMENTAL INDENTURES


 


Section 9.01                                Supplemental
Indentures without Consent of Securityholders.


 


The Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto, without the consent of the Securityholders,
for one or more of the following purposes:


 


(a)                                  to
evidence the succession of another corporation to the Company, or successive
successions, and the assumption by the successor corporation of the covenants,
agreements and obligations of the Company, pursuant to Article XI hereof;


 


(b)                                 to
add to the covenants of the Company such further covenants, restrictions or
conditions for the protection of the holders of Debt Securities as the Board of
Directors shall consider to be for the protection of the holders of such Debt
Securities, and to make the occurrence, or the occurrence and continuance, of a
Default in any of such additional covenants, restrictions or conditions a
Default or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular period of
grace after Default (which period may be shorter or longer than that allowed in
the case of other Defaults) or may provide for an immediate enforcement upon
such Default or may limit the remedies available to the Trustee upon such
default;


 


(c)                                  to
cure any ambiguity or to correct or supplement any provision contained herein
or in any supplemental indenture which may be defective or inconsistent with
any other provision contained herein or in any supplemental indenture, or to
make such other provisions in regard to matters or questions arising under this
Indenture, provided, that any such action shall not adversely affect the
interests of the holders of the Debt Securities then outstanding;


 


(d)                                 to
add to, delete from, or revise the terms of Debt Securities, including, without
limitation, any terms relating to the issuance, exchange, registration or
transfer of Debt Securities, including to provide for transfer procedures and
restrictions substantially similar to those applicable to the Capital Securities,
as required by Section 2.05 (for purposes of assuring that no registration of
Debt Securities is required under the Securities Act), provided, that
any such action shall not adversely affect the interests of the holders of the
Debt Securities then outstanding (it being understood, for purposes of this
proviso, that transfer restrictions on Debt Securities substantially similar to
those applicable to Capital Securities shall not be deemed to adversely affect
the holders of the Debt Securities);


 


(e)                                  to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.10;


 


45

















 


(f)                                    to
make any change (other than as elsewhere provided in this Section) that does
not adversely affect the rights of any Securityholder in any material respect;
or


 


(g)                                 to
provide for the issuance of and establish the form and terms and conditions of
the Debt Securities, to establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or the Debt Securities, or to
add to the rights of the holders of Debt Securities.


 


The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


Any supplemental indenture authorized by the
provisions of this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Debt Securities at the time
outstanding, notwithstanding any of the provisions of Section 9.02.


 


Section 9.02                                Supplemental
Indentures with Consent of Securityholders.


 


With the consent (evidenced as provided in Section
7.01) of the holders of a majority in aggregate principal amount of the Debt
Securities at the time outstanding affected by such supplemental indenture, the
Company, when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act, then
in effect, applicable to indentures qualified thereunder) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the holders of the Debt Securities; provided, however,
that no such supplemental indenture shall, without the consent of the holders
of each Debt Security then outstanding and affected thereby, (i) change the
Maturity Date of any Debt Security, or reduce the principal amount thereof or
any premium thereon, or reduce the rate (or manner of calculation of the rate)
or extend the time of payment of interest thereon, or reduce (other than as a
result of the maturity or earlier redemption of any such Debt Security in
accordance with the terms of this Indenture and such Debt Security) or increase
the aggregate principal amount of Debt Securities then outstanding, or change
any of the redemption provisions, or make the principal thereof or any interest
or premium thereon payable in any coin or currency other than United States
Dollars, or impair or affect the right of any Securityholder to institute suit
for payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities
the holders of which are required to consent to any such supplemental
indenture; and provided, further, that if the Debt Securities are
held by the Trust or the trustee of the Trust, such supplemental indenture
shall not be effective until the holders of a majority in aggregate liquidation
amount of the outstanding Capital Securities shall have consented to such
supplemental indenture; provided, further, that if the consent of
the Securityholder of each outstanding Debt Security is required, such
supplemental indenture shall not be effective until


 


46

















 


each holder of the outstanding Capital Securities
shall have consented to such supplemental indenture.


 


Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
(and holders of Capital Securities, if required) as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.


 


Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage prepaid, a
notice, prepared by the Company, setting forth in general terms the substance
of such supplemental indenture, to the Securityholders as their names and
addresses appear upon the Debt Security Register.  Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.


 


It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.


 


Section 9.03                                Effect
of Supplemental Indentures.


 


Upon the execution of any supplemental indenture pursuant
to the provisions of this Article IX, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Debt Securities shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.


 


Section 9.04                                Notation
on Debt Securities.


 


Debt Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article IX may bear a notation as to any matter provided for in such
supplemental indenture.  If the Company
or the Trustee shall so determine, new Debt Securities so modified as to
conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee or the
Authenticating Agent and delivered in exchange for the Debt Securities then
outstanding.


 


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Section 9.05                                Evidence
of Compliance of Supplemental Indenture to be Furnished to Trustee.


 


The Trustee, subject to the provisions of Sections
6.01 and 6.02, shall, in addition to the documents required by Section 14.06,
receive an Officers’ Certificate as conclusive evidence that any supplemental
indenture executed pursuant hereto complies with the requirements of this
Article IX.  The Trustee shall also
receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article IX is authorized or permitted by,
and conforms to, the terms of this Article IX and that it is proper for the
Trustee under the provisions of this Article IX to join in the execution
thereof.


 


ARTICLE X


REDEMPTION OF SECURITIES


 


Section 10.01                          Optional
Redemption.


 


The Company shall have the right, subject to the
receipt by the Company of the prior approval from the Federal Reserve, if then
required under applicable capital guidelines or policies of the Federal
Reserve, to redeem the Debt Securities, in whole or (provided that all accrued
and unpaid interest has been paid on all Debt Securities for all Interest
Periods terminating on or prior to such date) from time to time in part, on any
Interest Payment Date on or after January 23, 2009 (each, an “Optional
Redemption Date”), at the Optional Redemption Price.


 


Section 10.02                          Special
Event Redemption.


 


If a Special Event shall occur and be continuing, the
Company shall have the right, subject to the receipt by the Company of prior
approval from the Federal Reserve, if then required under applicable capital
guidelines or policies of the Federal Reserve, to redeem the Debt Securities,
in whole but not in part, at any time within 90 days following the occurrence
of such Special Event (the “Special Redemption Date”), at the Special
Redemption Price.  In the event that the
Special Redemption Date falls on a day prior to the LIBOR Determination Date
for any Interest Period, then the Company shall be required to pay to
Securityholders, on the Business Day following such LIBOR Determination Date,
any additional amount of interest that would have been payable on the Special
Redemption Date had the amount of interest determined on such LIBOR
Determination Date been known on the first day of such Interest Period.


 


Section 10.03                          Notice
of Redemption; Selection of Debt Securities.


 


In case the Company shall desire to exercise the right
to redeem all, or, as the case may be, any part of the Debt Securities, it shall
fix a date for redemption and shall mail, or cause the Trustee to mail (at the
expense of the Company), a notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to the holders of Debt
Securities so to be redeemed as a whole or in part at their last addresses as
the same appear on the Debt Security Register. 
Such mailing shall be by first class mail.  The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice.  In any case,
failure to give such notice by mail or any defect in the


 


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notice to the holder of any Debt Security designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security.


 


Each such notice of redemption shall specify the CUSIP
number, if any, of the Debt Securities to be redeemed, the date fixed for
redemption, the price (or manner of calculation of the price) at which Debt
Securities are to be redeemed, the place or places of payment, that payment
will be made upon presentation and surrender of such Debt Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice, and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. If less than all the Debt
Securities are to be redeemed, the notice of redemption shall specify the numbers
of the Debt Securities to be redeemed. 
In case the Debt Securities are to be redeemed in part only, the notice
of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Debt Security, a new Debt Security or Debt Securities in
principal amount equal to the unredeemed portion thereof will be issued.


 


Prior to 10:00 a.m., New York City time, on the
Optional Redemption Date or the Special Redemption Date specified in the notice
of redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more Paying Agents an amount of money sufficient to
redeem on such date all the Debt Securities so called for redemption at the
applicable price therefor, together with unpaid interest accrued to such date.


 


The Company will give the Trustee notice not less than
45 nor more than 75 days prior to the date fixed for redemption as to the price
at which the Debt Securities are to be redeemed and the aggregate principal
amount of Debt Securities to be redeemed and the Trustee shall select, in such
manner as in its sole discretion it shall deem appropriate and fair, the Debt
Securities or portions thereof (in integral multiples of $1,000) to be
redeemed.


 


Section 10.04                          Payment
of Debt Securities Called for Redemption.


 


If notice of redemption has been given as provided in
Section 10.03, the Debt Securities or portions of Debt Securities with respect
to which such notice has been given shall become due and payable on the related
Optional Redemption Date or Special Redemption Date (as the case may be) and at
the place or places stated in such notice at the applicable price therefor,
together with unpaid interest accrued thereon to said Optional Redemption Date
or the Special Redemption Date (as the case may be), and on and after said
Optional Redemption Date or the Special Redemption Date (as the case may be)
(unless the Company shall default in the payment of such Debt Securities at the
redemption price, together with unpaid interest accrued thereon to said date)
interest on the Debt Securities or portions of Debt Securities so called for
redemption shall cease to accrue.  On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, such Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable price
therefor, together with unpaid interest accrued thereon to said Optional
Redemption Date or the Special Redemption Date (as the case may be).


 


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Upon presentation of any Debt Security redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
make available for delivery to the holder thereof, at the expense of the
Company, a new Debt Security or Debt Securities of authorized denominations in
principal amount equal to the unredeemed portion of the Debt Security so
presented.


 


ARTICLE XI


CONSOLIDATION, MERGER, SALE, CONVEYANCE
AND LEASE


 


Section 11.01                          Company
May Consolidate, etc., on Certain Terms.


 


Nothing contained in this Indenture or in the Debt
Securities shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of all or substantially all of the
property or capital stock of the Company or its successor or successors to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
that the Company hereby covenants and agrees that (i) upon any such
consolidation, merger (where the Company is not the surviving corporation),
sale, conveyance, transfer or other disposition, the successor entity shall be
a corporation organized and existing under the laws of the United States or any
state thereof or the District of Columbia (unless such corporation has (1)
agreed to make all payments due in respect of the Debt Securities or, if
outstanding, the Trust Securities and the Capital Securities Guarantee without
withholding or deduction for, or on account of, any taxes, duties, assessments
or other governmental charges under the laws or regulations of the jurisdiction
of organization or residence (for tax purposes) of such corporation or any
political subdivision or taxing authority thereof or therein unless required by
applicable law, in which case such corporation shall have agreed to pay such
additional amounts as shall be required so that the net amounts received and
retained by the holders of such Debt Securities or Trust Securities, as the
case may be, after payment of all taxes (including withholding taxes), duties,
assessments or other governmental charges, will be equal to the amounts that
such holders would have received and retained had no such taxes (including
withholding taxes), duties, assessments or other governmental charges been
imposed, (2) irrevocably and unconditionally consented and submitted to the
jurisdiction of any United States federal court or New York state court, in
each case located in the Borough of Manhattan, The City of New York, in respect
of any action, suit or proceeding against it arising out of or in connection
with this Indenture, the Debt Securities, the Capital Securities Guarantee or
the Declaration and irrevocably and unconditionally waived, to the fullest
extent permitted by law, any objection to the laying of venue in any such court
or that any such action, suit or proceeding has been brought in an inconvenient
forum and (3) irrevocably appointed an agent in The City of New York for
service of process in any action, suit or proceeding referred to in clause (2)
above) and such corporation expressly assumes all of the obligations of the
Company under the Debt Securities, this Indenture, the Capital Securities
Guarantee and the Declaration and (ii) after giving effect to any such
consolidation, merger, sale, conveyance, transfer or other disposition, no
Default or Event of Default shall have occurred and be continuing.


 


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Section 11.02                          Successor
Entity to be Substituted.


 


In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition contemplated in Section 11.01 and
upon the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and reasonably satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and premium, if
any, and interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the Company, and thereupon the
predecessor entity shall be relieved of any further liability or obligation
hereunder or upon the Debt Securities. 
Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Debt Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee or the Authenticating Agent; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee or the Authenticating Agent shall authenticate and deliver any Debt
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee or the Authenticating Agent for
authentication, and any Debt Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. 
All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debt Securities had been issued at the date of the execution
hereof.


 


Section 11.03                          Opinion
of Counsel to be Given to Trustee.


 


The Trustee, subject to the provisions of Sections
6.01 and 6.02, shall receive, in addition to the Opinion of Counsel required by
Section 9.05, an Opinion of Counsel as conclusive evidence that any
consolidation, merger, sale, conveyance, transfer or other disposition, and any
assumption, permitted or required by the terms of this Article XI complies with
the provisions of this Article XI.


 


ARTICLE XII


SATISFACTION AND DISCHARGE OF
INDENTURE


 


Section 12.01                          Discharge
of Indenture.


 


When (a) the Company shall deliver to the Trustee for
cancellation all Debt Securities theretofore authenticated (other than any Debt
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.06) and not theretofore
canceled, or (b) all the Debt Securities not theretofore canceled or delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds, which shall be immediately due and payable,


 


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sufficient to pay at maturity or upon redemption all
of the Debt Securities (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.06) not theretofore canceled or delivered to the Trustee
for cancellation, including principal and premium, if any, and interest due or
to become due to the Maturity Date, any Optional Redemption Date or the Special
Redemption Date, as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of and premium, if any, or interest on the
Debt Securities (1) theretofore repaid to the Company in accordance with the
provisions of Section 12.04, or (2) paid to any state or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in the case
of either clause (a) or (b) above the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect except for the provisions of Sections 2.05, 2.06,
3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive until such
Debt Securities shall mature or are redeemed, as the case may be, and are paid
in full.  Thereafter, Sections 6.06,
6.09 and 12.04 shall survive, and the Trustee, on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with, and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company, however, hereby
agreeing to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Debt Securities.


 


Section 12.02                          Deposited
Moneys to be Held in Trust by Trustee.


 


Subject to the provisions of Section 12.04, all moneys
deposited with the Trustee pursuant to Section 12.01 shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent
(including the Company if acting as its own Paying Agent), to the holders of
the particular Debt Securities for the payment of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal, premium, if any, and interest.


 


Section 12.03                          Paying
Agent to Repay Moneys Held.


 


Upon the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent of the Debt Securities (other than the
Trustee) shall, upon demand of the Company, be repaid to the Company or paid to
the Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.


 


Section 12.04                          Return
of Unclaimed Moneys.


 


Any moneys deposited with or paid to the Trustee or
any Paying Agent for payment of the principal of and premium, if any, or
interest on Debt Securities and not applied but remaining unclaimed by the
holders of Debt Securities for two years after the date upon which the
principal of and premium, if any, or interest on such Debt Securities, as the
case may be, shall have become due and payable, shall be repaid to the Company
by the Trustee or such Paying Agent on written demand; and the holder of any of
the Debt Securities shall thereafter


 


52

















 


look only to the Company for any payment which such
holder may be entitled to collect and all liability of the Trustee or such
Paying Agent with respect to such moneys shall thereupon cease.


 


ARTICLE XIII


IMMUNITY OF INCORPORATORS,
STOCKHOLDERS,

OFFICERS AND DIRECTORS


 


Section 13.01                          Indenture
and Debt Securities Solely Corporate Obligations.


 


No recourse for the payment of the principal of or
premium, if any, or interest on any Debt Security, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in any
supplemental indenture, or in any such Debt Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer, director, employee or agent, as such, past,
present or future, of the Company or of any predecessor or successor
corporation of the Company, either directly or through the Company or any
successor corporation of the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of the Debt Securities.


 


ARTICLE XIV


MISCELLANEOUS PROVISIONS


 


Section 14.01                          Successors.


 


All the covenants, stipulations, promises and
agreements of the Company contained in this Indenture shall bind its successors
and assigns, whether so expressed or not.


 


Section 14.02                          Official
Acts by Successor Entity.


 


Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee, officer or other authorized
Person of any entity that shall at the time be the lawful successor of the
Company.


 


Section 14.03                          Surrender
of Company Powers.


 


The Company, by instrument in writing executed by
authority of 2/3 (two thirds) of its Board of Directors and delivered to the
Trustee, may surrender any of the powers reserved to the Company and thereupon
such power so surrendered shall terminate both as to the Company and as to any
permitted successor.


 


Section 14.04                          Addresses
for Notices, etc.


 


Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Securityholders on the Company may be


 


53

















 


given or served in writing by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee for such
purpose) to the Company at 800 Poyntz Avenue, Manhattan, Kansas 66502,
Attention: Mark Herpich.  Any notice,
direction, request or demand by any Securityholder or the Company to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the office of Wilmington Trust Company at Rodney
Square North, 1100 North Market Street, Wilmington, DE 19890-0001, Attention:
Corporate Trust Administration.


 


Section 14.05                          Governing
Law.


 


This Indenture and the Debt Securities shall each be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to conflict of laws principles of said State other than
Section 5-1401 of the New York General Obligations Law.


 


Section 14.06                          Evidence
of Compliance with Conditions Precedent.


 


Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate stating that in the
opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with (except that no such Opinion of
Counsel is required to be furnished to the Trustee in connection with the
authentication and issuance of Debt Securities).


 


Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (except certificates
delivered pursuant to Section 3.05) shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition
and the definitions relating thereto; (b) a brief statement as to the nature
and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (c) a statement
that, in the opinion of such person, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.


 


Section 14.07                          Business
Day Convention.


 


Notwithstanding anything to the contrary contained
herein, if any Interest Payment Date, other than the Maturity Date, any
Optional Redemption Date or the Special Redemption Date, falls on a day that is
not a Business Day, then any interest payable will be paid on, and such
Interest Payment Date will be moved to, the next succeeding Business Day, and
additional interest will accrue for each day that such payment is delayed as a
result thereof.  If the Maturity Date,
any Optional Redemption Date or the Special Redemption Date falls on a day that
is not a Business Day, then the principal, premium, if any, and/or interest
payable on such date will be paid on the next succeeding Business Day, and no
additional interest will accrue in respect of such payment made on such next
succeeding Business Day.


 


54

















 


Section 14.08                          Table
of Contents, Headings, etc.


 


The table of contents and the titles and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.


 


Section 14.09                          Execution
in Counterparts.


 


This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.


 


Section 14.10                          Separability.


 


In case any one or more of the provisions contained in
this Indenture or in the Debt Securities shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Indenture or
of such Debt Securities, but this Indenture and such Debt Securities shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein or therein.


 


Section 14.11                          Assignment.


 


Subject to Article XI, the Company will have the right
at all times to assign any of its rights or obligations under this Indenture
and the Debt Securities to a direct or indirect wholly owned Subsidiary of the
Company; provided, however, that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.


 


Section 14.12                          Acknowledgment
of Rights.


 


The Company acknowledges that, with respect to any
Debt Securities held by the Trust or a trustee of the Trust, if such trustee of
the Trust fails to enforce its rights under this Indenture as the holder of
Debt Securities held as the assets of the Trust after the holders of a majority
in aggregate liquidation amount of the outstanding Capital Securities of the
Trust have so directed in writing such trustee, a holder of record of such
Capital Securities may, to the fullest extent permitted by law, institute legal
proceedings directly against the Company to enforce such trustee’s rights under
this Indenture without first instituting any legal proceedings against such
trustee or any other Person. 
Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Company to
pay interest or premium, if any, on or principal of the Debt Securities on the
date such interest, premium, if any, or principal is otherwise due and payable
(or, in the case of redemption, on the related Optional Redemption Date or the
Special Redemption Date (as the case may be)), the Company acknowledges that a
holder of outstanding Capital Securities of the Trust may directly institute a
proceeding against the Company for enforcement of payment to such holder
directly of the principal of or premium, if any, or interest on the Debt
Securities having an aggregate


 


55

















 


principal amount equal to the aggregate liquidation
amount of the Capital Securities of such holder on or after the respective due
date (or Optional Redemption Date or Special Redemption Date (as the case may
be)) specified in the Debt Securities.


 


ARTICLE XV


SUBORDINATION OF DEBT SECURITIES


 


Section 15.01                          Agreement
to Subordinate.


 


The Company covenants and agrees, and each holder of
Debt Securities issued hereunder and under any supplemental indenture (the
“Additional Provisions”) by such holder’s acceptance thereof likewise covenants
and agrees, that all Debt Securities shall be issued subject to the provisions
of this Article XV; and each holder of a Debt Security, whether upon original
issue or upon transfer or assignment thereof, accepts and agrees to be bound by
such provisions.


 


The payment by the Company of the payments due on all
Debt Securities issued hereunder and under any Additional Provisions shall, to
the extent and in the manner hereinafter set forth, be subordinated and junior
in right of payment to the prior payment in full of all Senior Indebtedness of
the Company, whether outstanding at the date of this Indenture or thereafter
incurred.


 


No provision of this Article XV shall prevent the
occurrence of any default or Event of Default hereunder.


 


Section 15.02                          Default
on Senior Indebtedness.


 


In the event and during the continuation of any
default by the Company in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness of the Company following any
applicable grace period, or in the event that the maturity of any Senior
Indebtedness of the Company has been accelerated because of a default, and such
acceleration has not been rescinded or canceled and such Senior Indebtedness
has not been paid in full, then, in either case, no payment shall be made by
the Company with respect to the payments due on the Debt Securities.


 


In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section, such payment shall, subject to Section
15.06, be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Indebtedness or their respective representatives, or
to the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior Indebtedness (or
their representative or representatives or trustee) notify the Trustee in
writing within 90 days of such payment of the amounts then due and owing on the
Senior Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Indebtedness.


 


56

















 


Section 15.03                          Liquidation;
Dissolution; Bankruptcy.


 


Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution, winding-up, liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due upon
all Senior Indebtedness of the Company shall first be paid in full, or payment
thereof provided for in money in accordance with its terms, before any payment
is made by the Company on the Debt Securities; and upon any such dissolution,
winding-up, liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Securityholders or the Trustee would
be entitled to receive from the Company, except for the provisions of this Article
XV, shall be paid by the Company, or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Securityholders or by the Trustee under this Indenture if received by
them or it, directly to the holders of Senior Indebtedness of the Company (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money’s worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the Securityholders.


 


In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing shall be
received by the Trustee before all Senior Indebtedness of the Company is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of,
and shall be paid over or delivered to, the holders of such Senior Indebtedness
or their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of all Senior Indebtedness
of the Company remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the benefit of the holders
of such Senior Indebtedness.


 


For purposes of this Article XV, the words “cash,
property or securities” shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XV with respect to the Debt Securities to the payment of all Senior
Indebtedness of the Company, that may at the time be outstanding, provided,
that (a) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (b) the rights of
the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment.  The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the


 


57

















 


Company following the conveyance, transfer or other
disposition of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in Article XI of
this Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article XI of this Indenture.  Nothing in Section 15.02 or in this Section
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.06 of this Indenture.


 


Section 15.04                          Subrogation.


 


Subject to the payment in full of all Senior
Indebtedness of the Company, the Securityholders shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Senior Indebtedness until all payments due on the Debt Securities shall be paid
in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property
or securities to which the Securityholders or the Trustee would be entitled
except for the provisions of this Article XV, and no payment over pursuant to
the provisions of this Article XV to or for the benefit of the holders of such
Senior Indebtedness by Securityholders or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the
Company, and the holders of the Debt Securities be deemed to be a payment or
distribution by the Company to or on account of such Senior Indebtedness.  It is understood that the provisions of this
Article XV are, and are intended, solely for the purposes of defining the
relative rights of the holders of the Debt Securities, on the one hand, and the
holders of such Senior Indebtedness, on the other hand.


 


Nothing contained in this Article XV or elsewhere in
this Indenture, any Additional Provisions or in the Debt Securities is intended
to or shall impair, as between the Company, its creditors other than the
holders of Senior Indebtedness of the Company, and the holders of the Debt
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Debt Securities all payments on the Debt
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
holders of the Debt Securities and creditors of the Company other than the
holders of Senior Indebtedness of the Company, nor shall anything herein or
therein prevent the Trustee or the holder of any Debt Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XV of the holders
of such Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.


 


Upon any payment or distribution of assets of the
Company referred to in this Article XV, the Trustee, subject to the provisions
of Article VI of this Indenture, and the Securityholders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Securityholders,
for the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the


 


58

















 


amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article XV.


 


Section 15.05                          Trustee
to Effectuate Subordination.


 


Each Securityholder, by such Securityholder’s acceptance
thereof, authorizes and directs the Trustee on such Securityholder’s behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article XV and appoints the Trustee such
Securityholder’s attorney-in-fact for any and all such purposes.


 


Section 15.06                          Notice
by the Company.


 


The Company shall give prompt written notice to a
Responsible Officer of the Trustee at the Principal Office of the Trustee of
any fact known to the Company that would prohibit the making of any payment of
moneys to or by the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XV. 
Notwithstanding the provisions of this Article XV or any other provision
of this Indenture or any Additional Provisions, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of moneys to or by the Trustee in respect of the Debt
Securities pursuant to the provisions of this Article XV unless and until a
Responsible Officer of the Trustee at the Principal Office of the Trustee shall
have received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least two Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of
or premium, if any, or interest on any Debt Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purposes for
which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such
date.


 


The Trustee, subject to the provisions of Article VI
of this Indenture, shall be entitled to conclusively rely on the delivery to it
of a written notice by a Person representing himself or herself to be a holder
of Senior Indebtedness of the Company (or a trustee or representative on behalf
of such holder) to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee or representative on behalf of any such
holder or holders.  In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such Person under this Article XV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.


 


59

















 


Section 15.07                          Rights
of the Trustee; Holders of Senior Indebtedness.


 


The Trustee, in its individual capacity, shall be
entitled to all the rights set forth in this Article XV in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture or any Additional Provisions
shall deprive the Trustee of any of its rights as such holder.


 


With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or any Additional Provisions
against the Trustee.  The Trustee shall
not owe or be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Article VI of this Indenture,
the Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to Securityholders, the Company or any other Person
money or assets to which any holder of such Senior Indebtedness shall be entitled
by virtue of this Article XV or otherwise.


 


Nothing in this Article XV shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 6.06.


 


Section 15.08                          Subordination
May Not Be Impaired.


 


No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.


 


Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Debt Securities to the holders
of such Senior Indebtedness, do any one or more of the following: (a) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or
any agreement under which such Senior Indebtedness is outstanding; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (c) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (d) exercise or
refrain from exercising any rights against the Company or any other Person.


 


60

















 


Wilmington Trust Company, in its capacity as Trustee,
hereby accepts the trusts in this Indenture declared and provided, upon the terms
and conditions herein above set forth.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.


 


	
   

  	
  LANDMARK BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST
  COMPANY,

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


61

















 


EXHIBIT A


 


FORM OF DEBT
SECURITY


 


[FORM OF FACE OF
SECURITY]


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS.  NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN PRIOR TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES
ACT) AFTER THE LATER OF (Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER
THE SECURITIES ACT) OF THE COMPANY WAS THE HOLDER OF THIS SECURITY OR SUCH
INTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW,
ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE
144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER”, AS DEFINED IN RULE 144A, THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)
OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY OR
SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (C) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER


 


A-1

















 


INFORMATION
SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY.  THE HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.


 


THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS
SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND
HOLDING OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE
OR HOLDING.  ANY PURCHASER OR HOLDER OF
THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR THEREOF, AS THE CASE MAY BE,
THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT
PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE AND HOLDING WILL
NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.


 


IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.


 


THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF
$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF.  ANY ATTEMPTED TRANSFER OF THIS SECURITY IN


 


A-2

















 


DENOMINATIONS
OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY OR
SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN.


 


THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE “FDIC”).  THIS
OBLIGATION IS SUBORDINATED TO THE CLAIMS OF THE DEPOSITORS AND THE CLAIMS OF
GENERAL AND SECURED CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A
LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOT SECURED.


 


Floating Rate
Junior Subordinated Debt Security due 2034


of


LANDMARK BANCORP,
INC.


 


Landmark Bancorp, Inc., a bank holding company
incorporated in Delaware (the “Company”, which term includes any successor
permitted under the Indenture (as defined herein)), for value received,
promises to pay to Wilmington Trust Company, not in its individual capacity but
solely as Institutional Trustee for Landmark Capital Trust I, a Delaware
statutory trust, or registered assigns, the principal amount of
EIGHT MILLION TWO HUNDRED FORTY-EIGHT THOUSAND Dollars ($8,248,000)
on January 23, 2034 (the “Maturity Date”) (or any Optional Redemption Date
or the Special Redemption Date, each as defined herein, or any earlier date of
acceleration of the maturity of this Debt Security), and to pay interest on the
outstanding principal amount of this Debt Security from December 19, 2003,
or from the most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on January 23, April 23, July 23
and October 23 of each year, commencing on April 23, 2004 (each, an
“Interest Payment Date”), at a floating rate per annum, which, with respect to
any Interest Period (as defined in the Indenture), will be equal to LIBOR (as
defined in the Indenture), as determined on the LIBOR Determination Date (as
defined in the Indenture) for such Interest Period, plus, from, and including,
March 18, 2004, 2.85% (the “Interest Rate”) (provided that the Interest
Rate for any Interest Period may not exceed the highest rate permitted by New
York law, as the same may be modified by United States law of general
application) until the principal hereof shall have been paid or duly provided
for, and on any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at an annual rate equal to the then applicable
Interest Rate, compounded quarterly. 
The amount of interest payable for any Interest Period shall be computed
on the basis of a 360-day year and the actual number of days elapsed in such
Interest Period.


 


A-3

















 


The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Debt Security (or one
or more Predecessor Securities, as defined in the Indenture) is registered at
the close of business on the “regular record date” for such interest
installment, which shall be the fifteenth day prior to such Interest Payment
Date, whether or not such day is a Business Day (as defined herein).  Any such interest installment (other than
Deferred Interest (as defined herein)) not punctually paid or duly provided for
shall forthwith cease to be payable to the holders on such regular record date
and may be paid to the Person in whose name this Debt Security (or one or more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the holders of the Debt Securities
not less than 10 days prior to such special record date, all as more fully
provided in the Indenture.


 


Payment of the principal of and premium, if any, and
interest on this Debt Security due on the Maturity Date, any Optional
Redemption Date or the Special Redemption Date, as the case may be, shall be
made in immediately available funds against presentation and surrender of this
Debt Security at the office or agency of the Trustee maintained for that
purpose in Wilmington, Delaware, or at the office or agency of any other Paying
Agent appointed by the Company maintained for that purpose in Wilmington,
Delaware or Topeka, Kansas.  Payment of
interest on this Debt Security due on any Interest Payment Date other than the
Maturity Date, any Optional Redemption Date or the Special Redemption Date, as
the case may be, shall be made at the option of the Company by check mailed to
the holder thereof at such address as shall appear in the Debt Security
Register or by wire transfer of immediately available funds to an account
appropriately designated by the holder hereof. 
Notwithstanding the foregoing, so long as the holder of this Debt
Security is the Institutional Trustee, payment of the principal of and premium,
if any, and interest on this Debt Security shall be made in immediately
available funds when due at such place and to such account as may be designated
by the Institutional Trustee.  All payments
in respect of this Debt Security shall be payable in any coin or currency of
the United States of America that at the time of payment is legal tender for
payment of public and private debts.


 


Notwithstanding anything to the contrary contained
herein, if any Interest Payment Date, other than the Maturity Date, any
Optional Redemption Date or the Special Redemption Date, falls on a day that is
not a Business Day, then any interest payable will be paid on, and such
Interest Payment Date will be moved to, the next succeeding Business Day, and
additional interest will accrue for each day that such payment is delayed as a
result thereof.  If the Maturity Date,
any Optional Redemption Date or the Special Redemption Date falls on a day that
is not a Business Day, then the principal, premium, if any, and/or interest
payable on such date will be paid on the next succeeding Business Day, and no
additional interest will accrue in respect of such payment made on such next
succeeding Business Day.


 


So long as no Event of Default has occurred and is
continuing, the Company shall have the right, from time to time and without
causing an Event of Default, to defer payments of interest on the Debt
Securities by extending the interest payment period on the Debt Securities at
any time and from time to time during the term of the Debt Securities, for up
to 20 consecutive quarterly periods (each such extended interest payment
period, together with all previous and


 


A-4

















 


further consecutive extensions thereof, is referred to
herein as an “Extension Period”).  No
Extension Period may end on a date other than an Interest Payment Date or
extend beyond the Maturity Date, any Optional Redemption Date or the Special
Redemption Date, as the case may be. 
During any Extension Period, interest will continue to accrue on the
Debt Securities, and interest on such accrued interest (such accrued interest
and interest thereon referred to herein as “Deferred Interest”) will accrue at
an annual rate equal to the Interest Rate applicable during such Extension
Period, compounded quarterly from the date such Deferred Interest would have
been payable were it not for the Extension Period, to the extent permitted by
applicable law.  No interest or Deferred
Interest (except any Additional Amounts (as defined in the Indenture) that may
be due and payable) shall be due and payable during an Extension Period, except
at the end thereof.  At the end of any
Extension Period, the Company shall pay all Deferred Interest then accrued and
unpaid on the Debt Securities; provided, however, that during any
Extension Period, the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock, (ii) make any payment of
principal of or premium, if any, or interest on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu in all respects
with or junior in interest to the Debt Securities or (iii) make any payment
under any guarantees of the Company that rank in all respects pari passu
with or junior in respect to the Capital Securities Guarantee (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of
the Company (A) in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, (B) in connection with a dividend
reinvestment or stockholder stock purchase plan or (C) in connection with the
issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to such Extension Period, (b) as a result of any
exchange or conversion of any class or series of the Company’s capital stock
(or any capital stock of a subsidiary of the Company) for any class or series
of the Company’s capital stock or of any class or series of the Company’s indebtedness
for any class or series of the Company’s capital stock, (c) the purchase of
fractional interests in shares of the Company’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with
any stockholder’s rights plan, or the issuance of rights, stock or other
property under any stockholder’s rights plan, or the redemption or repurchase
of rights pursuant thereto or (e) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such
stock).  Prior to the termination of any
Extension Period, the Company may further extend such Extension Period, provided,
that no Extension Period (including all previous and further consecutive
extensions that are part of such Extension Period) shall exceed 20 consecutive
quarterly periods.  Upon the termination
of any Extension Period and upon the payment of all Deferred Interest, the
Company may commence a new Extension Period, subject to the foregoing
requirements.  The Company must give the
Trustee notice of its election to begin or extend an Extension Period at least
one Business Day prior to the regular record date applicable to the next
succeeding Interest Payment Date.


 


The indebtedness evidenced by this Debt Security is,
to the extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior


 


A-5

















 


Indebtedness (as defined in the Indenture), and this Debt Security is
issued subject to the provisions of the Indenture with respect thereto.  Each holder of this Debt Security, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on such holder’s behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee such holder’s
attorney-in-fact for any and all such purposes.  Each holder hereof, by such holder’s acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.


 


The Company waives diligence, presentment, demand for
payment, notice of nonpayment, notice of protest, and all other demands and
notices.


 


This Debt Security shall not be entitled to any
benefit under the Indenture hereinafter referred to and shall not be valid or
become obligatory for any purpose until the certificate of authentication
hereon shall have been signed by or on behalf of the Trustee.


 


The provisions of this Debt Security are continued on
the reverse side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.


 


A-6

















 


IN WITNESS WHEREOF, the Company has duly executed this
certificate.


 


	
   

  	
  LANDMARK BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:                                        ,            

  	
   

  



 


 


CERTIFICATE OF
AUTHENTICATION


 


This is one of the Debt Securities referred to in the
within-mentioned Indenture.


 


	
   

  	
  WILMINGTON TRUST
  COMPANY,

  
	
   

  	
  not
  in its individual capacity but solely as

  
	
   

  	
  the
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:                                        ,
                  

  	
   

  
				



 


A-7

















 


[FORM OF REVERSE
OF SECURITY]


 


This Debt Security is one of a duly authorized series
of debt securities of the Company (collectively, the “Debt Securities”), all
issued or to be issued pursuant to an Indenture (the “Indenture”), dated as of
December 19, 2003, duly executed and delivered between the Company and
Wilmington Trust Company, as Trustee (the “Trustee”), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Debt Securities
of which this Debt Security is a part.


 


Upon the occurrence and continuation of a Tax Event,
an Investment Company Event or a Capital Treatment Event (each, a “Special
Event”), the Company shall have the right to redeem this Debt Security, at its
option, in whole with all other Debt Securities but not in part, at any time,
within 90 days following the occurrence of such Special Event (the “Special
Redemption Date”), at the Special Redemption Price (as defined herein).  In the event that the Special Redemption
Date falls on a day prior to the LIBOR Determination Date for any Interest
Period, then the Company shall be required to pay to Securityholders, on the
Business Day following such LIBOR Determination Date, any additional amount of
interest that would have been payable on the Special Redemption Date had the
amount of interest determined on such LIBOR Determination Date been known on
the first day of such Interest Period.


 


The Company shall also have the right to redeem this
Debt Security at its option, in whole or (provided that all accrued and unpaid
interest has been paid on all Debt Securities for all Interest Periods
terminating on or prior to such date) from time to time in part, on any
Interest Payment Date on or after January 23, 2009 (each, an “Optional
Redemption Date”), at the Optional Redemption Price (as defined herein).


 


Any redemption pursuant to the preceding two
paragraphs will be made, subject to receipt by the Company of prior approval
from the Board of Governors of the Federal Reserve System (the “Federal
Reserve”) if then required under applicable capital guidelines or policies of
the Federal Reserve, upon not less than 30 days’ nor more than 60 days’ prior
written notice.  If the Debt Securities
are only partially redeemed by the Company, the Debt Securities will be
redeemed pro rata or by any other method utilized by the Trustee.  In the event of redemption of this Debt
Security in part only, a new Debt Security or Debt Securities for the
unredeemed portion hereof will be issued in the name of the holder hereof upon
the cancellation hereof.


 


“Optional Redemption Price” means an amount in cash
equal to 100% of the principal amount of this Debt Security being redeemed plus
unpaid interest accrued thereon to the related Optional Redemption Date.


 


“Special Redemption Price” means, with respect to the
redemption of this Debt Security following a Special Event, an amount in cash
equal to 104.125% of the principal amount of this Debt Security to be redeemed
prior to January 23, 2005 and thereafter equal to the percentage of the
principal amount of this Debt Security that is specified below for the Special
Redemption Date plus, in each case, unpaid interest accrued thereon to the
Special Redemption Date:


 


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  Special Redemption During the 12-Month

  Period Beginning January 23,

  	
   

  	
  Percentage
  of Principal Amount

  	
   

  
	
  2005

  	
   

  	
  103.300

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  102.415

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2007

  	
   

  	
  101.650

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2008

  	
   

  	
  100.825

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2009 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


In case an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal of all of the
Debt Securities may be declared, and, in certain cases, shall ipso  facto
become, due and payable, and upon any such declaration of acceleration shall
become due and payable, in each case, in the manner, with the effect and
subject to the conditions provided in the Indenture.


 


The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the holders of a majority in
aggregate principal amount of the Debt Securities at the time outstanding
affected thereby, as specified in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such
supplemental indenture shall, among other things, without the consent of the
holders of each Debt Security then outstanding and affected thereby
(i) change the Maturity Date of any Debt Security, or reduce the principal
amount thereof or any premium thereon, or reduce the rate (or manner of
calculation of the rate) or extend the time of payment of interest thereon, or
reduce (other than as a result of the maturity or earlier redemption of any
such Debt Security in accordance with the terms of the Indenture and such Debt
Security) or increase the aggregate principal amount of Debt Securities then
outstanding, or change any of the redemption provisions, or make the principal
thereof or any interest or premium thereon payable in any coin or currency
other than United States Dollars, or impair or affect the right of any holder
to institute suit for payment thereof, or (ii) reduce the aforesaid
percentage of Debt Securities the holders of which are required to consent to
any such supplemental indenture.  The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debt Securities at the time outstanding, on
behalf of the holders of all the Debt Securities, to waive any past default in
the performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture, and its consequences, except (a) a
default in payments due in respect of any of the Debt Securities, (b) in
respect of covenants or provisions of the Indenture which cannot be modified or
amended without the consent of the holder of each Debt Security affected, or
(c) in respect of the covenants of the Company relating to its ownership
of Common Securities of the Trust.  Any
such consent or waiver by the holder of this Debt Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Debt Security and of any Debt
Security issued in exchange


 


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herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debt Security.


 


No reference herein to the Indenture and no provision
of this Debt Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to make all payments due on
this Debt Security at the time and place and at the rate and in the money
herein prescribed.


 


As provided in the Indenture and subject to certain
limitations herein and therein set forth, this Debt Security is transferable by
the holder hereof on the Debt Security Register (as defined in the Indenture)
of the Company, upon surrender of this Debt Security for registration of
transfer at the office or agency of the Trustee in Wilmington, Delaware, or at
any other office or agency of the Company in Wilmington, Delaware or Topeka,
Kansas, accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the holder hereof
or such holder’s attorney duly authorized in writing, and thereupon one or more
new Debt Securities of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.  No service charge will be made for any such
registration of transfer, but the Company or the Trustee may require payment of
a sum sufficient to cover any tax, fee or other governmental charge payable in
relation thereto as specified in the Indenture.


 


Prior to due presentment for registration of transfer
of this Debt Security, the Company, the Trustee, any Authenticating Agent, any
Paying Agent, any transfer agent and the Debt Security registrar may deem and
treat the holder hereof as the absolute owner hereof (whether or not this Debt
Security shall be overdue and notwithstanding any notice of ownership or
writing hereon) for the purpose of receiving payment of the principal of and
premium, if any, and interest on this Debt Security and for all other purposes,
and none of the Company, the Trustee, any Authenticating Agent, any Paying
Agent, any transfer agent or any Debt Security registrar shall be affected by
any notice to the contrary.


 


As provided in the Indenture and subject to certain
limitations herein and therein set forth, Debt Securities are exchangeable for
a like aggregate principal amount of Debt Securities of different authorized
denominations, as requested by the holder surrendering the same.


 


The Debt Securities are issuable only in registered
certificated form without coupons.


 


No recourse shall be had for the payment of the
principal of or premium, if any, or interest on this Debt Security, or for any
claim based hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture, against any incorporator, stockholder, officer, director,
employee or agent, past, present or future, as such, of the Company or of any
predecessor or successor corporation of the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issuance hereof, expressly waived and
released.


 


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All terms used but not defined in this Debt Security
shall have the meanings assigned to them in the Indenture.


 


THIS DEBT SECURITY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW.


 


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